Submitted January 15, 2019
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket No. L-2574-17.
Landman Corsi Ballaine & Ford PC, attorneys for appellant
(Gerald T. Ford, JonCarlo E. Villegas, and Kristina M. Rogan,
on the briefs).
Office of Andrew A. Ballerini, attorneys for respondent
(Richard J. Talbot, on the brief).
Judges Rothstadt, Gilson, and Natali.
appeal we clarify the standard for evaluating a claim of the
work-product privilege. Consistent with the language of
Rule 4:10-2(c), we hold that there is no per se or
presumptive rule that materials prepared or collected before
litigation are not prepared in anticipation of litigation.
Instead, as set forth in Rule 4:10-2(c), there is a
multi-part, fact-specific test. The first inquiry is whether
the materials were prepared or collected in anticipation of
litigation or trial by another party or that party's
representative. If so, to obtain the materials, a party must
satisfy a two-part standard. The party seeking the materials
must (1) show a substantial need for the discovery, and (2)
demonstrate that he or she is unable, without undue hardship,
to obtain the substantial equivalent of the materials.
leave granted, defendant appeals from an April 13, 2018 order
that compelled it to produce photographs and recorded witness
statements taken and obtained by an investigator for
defendant's insurance carrier before a complaint had been
filed and before defense counsel was retained. The trial
court ordered the production of those materials, essentially
reasoning that because there was no pending litigation, the
insurance carrier was not acting in anticipation of
litigation. We reject that analysis as inconsistent with
Rule 4:10-2(c). Accordingly, we reverse the order
compelling discovery and remand for an analysis under the
standard set forth in this opinion.
discern the facts and procedural history from the record
developed on the motion to compel discovery. On October 9,
2015, plaintiff Caroline Paladino was a guest at a wedding
reception at defendant's catering facility. As she was
walking down a staircase, she fell and injured her left knee,
lower back, and right ankle.
immediately reported her accident to defendant, and that same
day, defendant prepared an accident incident report.
Defendant had general liability insurance, and shortly after
the accident, gave notice to its insurer. The insurer then
retained an investigator.
weeks after the accident, on October 22, 2015, a senior
claims examiner for defendant's insurer spoke with
plaintiff about the accident. That same day, the claims
examiner sent plaintiff a letter advising her that an
investigator was looking into the accident. The claims
examiner then requested the investigator to photograph the
accident scene and obtain statements from plaintiff and
representatives of defendant.
claims examiner later certified that her purpose in retaining
the investigator was to "prepare a defense for
[defendant] in the event that [plaintiff] filed a
lawsuit." The claims examiner also certified that the
insurer was not disputing coverage and did not hire the
investigator to look into whether the insurer owed coverage
investigator arranged to meet with and take a recorded
statement from plaintiff on October 26, 2015. On the day of
the appointment, the investigator was contacted by an
attorney who informed him that he had been retained by
plaintiff and the appointment with plaintiff was cancelled.
The next day, plaintiff's counsel sent a letter informing
the insurance carrier that he was representing plaintiff in
connection with the fall.
October 26, 2015, the investigator inspected defendant's
catering facility, took photographs of the staircase, and
prepared a diagram of the accident scene. The investigator
also obtained recorded oral statements from two of
defendant's employees. Approximately one week later, on
November 1, ...