LESLIE O. ROBERTSON VS. THE STATE OF NEW JERSEY (L-1339-16, BURLINGTON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2211-17T3
LESLIE O. ROBERTSON,
Plaintiff-Respondent,
v.
THE STATE OF NEW JERSEY
DEPARTMENT OF LAW & PUBLIC
SAFETY, THE NEW JERSEY
JUVENILE JUSTICE COMMISSION,
GEORGE SPRAGUE,
Defendants-Appellants.
_____________________________
Argued May 16, 2018 – Decided June 27, 2018
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1339-16.
Gregory R. Bueno, Deputy Attorney General,
argued the cause for appellants (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Daniel F. Thornton, on the briefs).
Alan H. Schorr argued the cause for respondent
(Schorr & Associates, PC, attorneys; Arykah
A. Trabosh, on the brief).
PER CURIAM
In this employment matter, upon leave granted, defendants,
State of New Jersey, Department of Law and Public Safety, New
Jersey Juvenile Justice Commission (JJC) and George Sprague
(defendants), appeal from the September 22, 2017 and January 11,
2018 orders compelling them to provide certain discovery to
plaintiff. We affirm.
Plaintiff Leslie Robertson, a former employee of the JJC,
alleges in a complaint against defendants, he was subjected to
racial discrimination, harassment, a hostile work environment, and
retaliation under the New Jersey Law Against Discrimination
(NJLAD), N.J.S.A. 10:4-1 to -42. The parties entered into a
Discovery Confidentiality and Protective Order.
During discovery, plaintiff requested defendants provide,
among other items, all race-based Equal Employment Opportunity
(EEO) complaints against JJC employees for a five-year timeframe.
Defendants advised it had fifty files that fell within the specific
parameters but refused to turn over those files without the court
conducting an in camera review. Following oral argument, the
court ruled on September 15, 2017, that the requested documents
were "relevant and discoverable in a racial discrimination case."
The judge reasoned that an in camera review was unnecessary in
light of the confidentiality agreement. She further advised if
defendants raised any specific privileges regarding the documents,
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the court would address them through a privilege log and potential
in camera review.
Defendants moved for reconsideration of the court's order,
contending existing case law required an in camera review. During
oral argument, they advised the court they had prepared a
spreadsheet summarizing the EEO claims from the pertinent files.
All personal identifiers had been redacted, including
complainants' and witness's names. Defendant had assigned to each
person a letter for race and gender, and a number.1
Despite these precautions, defendants contended the court was
required to undertake an in camera review of the documents due to
the privacy concerns of the individuals involved in the particular
documents. Plaintiff asserted, in turn, that the confidentiality
order and extensive redactions of any personal information allayed
any privacy concerns.
In an oral decision of January 5, 2018, the judge noted the
underlying competing policy considerations at play in the
disclosure of documents pertaining to discrimination or harassment
allegations. She referred to Payton v. New Jersey Turnpike
Authority, 148 N.J. 524 (1998), and its direction to trial judges
to implement procedures to protect the confidentiality of those
1
For example, the first African American male was assigned BM1.
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involved in the investigation. Here, a confidentiality agreement
and extensive redactions of the requested documents were already
in place and the judge was satisfied these precautions dispelled
the public policy concerns. She concluded:
At this point, given the foregoing, the
Court will deny the motion for
reconsideration. If down the line as these
documents are being turned over there is an
issue relating to any of these EEO proceedings
or filings that warrant further review by the
Court where the defendant can actually
articulate a confidentiality concern, the
Court will certainly do an in camera review,
but at this point the Court finds that these
records are certainly relevant and . . . the
confidentiality concerns are sufficiently
protected given the required redactions and
the confidentiality agreement.
The trial judge memorialized her ruling in a written decision of
January 11, 2018.
On appeal, defendants reiterate their argument that the trial
court erred in failing to undertake an in camera review of the EEO
records. They assert the court did not make a finding of relevance
as to each document and failed to weigh the public and private
interests.
Despite extensive briefing and two oral arguments in the
trial court, defendants did not provide any specific argument to
support their assertion that the documents sought by plaintiff
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were not relevant. The appellate briefs and argument are no more
illuminating.
Litigants enjoy a wide breadth of discovery as Rule 4:10-2
permits "discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action."
The broad standard includes all information reasonably calculated
to lead to admissible evidence. See Pfenninger v. Hunterdon Cent.
Reg'l High Sch., 167 N.J. 230, 237 (2001). Certainly, the
requested files, which contain allegations of race discrimination
and retaliation, meet this standard and are relevant to plaintiff's
case. Therefore, defendants must assert a privilege or other
public policy concern to prevent the disclosure of the files.
Defendants have not articulated a privilege that prevents the
production of the files. Rather, they argue, again without
specificity, that the trial court did not balance the public and
private concerns, and that our case law requires an in camera
review.
In Payton v. New Jersey Turnpike Authority, 292 N.J. Super.
36, 39 (App. Div. 1996), aff'd 148 N.J. 524 (1998), we addressed
whether plaintiff was entitled to defendant's internal EEO
documents relating to its internal investigation in an action
alleging violations of the NJLAD. Defendant opposed the
production, claiming the protection of several privileges. We
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disagreed with the applicability of several of the asserted
privileges, but remained concerned for the confidentiality
expectations of witnesses who had given statements or provided
information to the investigators. We therefore advised the trial
court, in its review of the material, to determine "whether the
identities of the witnesses shall be protected by appropriate
redaction." Id. at 48.
Here, the trial court recognized the privacy concerns
implicit to the disclosure of the EEO files. However, the parties
had a confidentiality agreement in place. In addition, defendants
had already redacted the documents and removed all identifiers in
accordance with the concerns enunciated in Payton. Defendants
could not articulate to the court what further measures to take
if an in camera review were done. We reject defendants' argument
that an in camera review is required in all such matters. Instead,
disputes over document disclosure should be analyzed on a case-
by-case basis. See Dixon v. Rutgers, 110 N.J. 432, 451 (1988).
We cannot discern an abuse of discretion by the trial court
in its decision granting plaintiff access to the EEO files.
Without any proffer to the contrary, the confidentiality order and
redaction protocol more than suffice to protect the privacy
concerns of any individuals involved in the investigations. During
the arguments, the judge advised that if defendants articulated a
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specific privilege or confidentiality following the production of
the redacted documents, she would address it. The trial judge's
discovery order was reasonable in light of the confidentiality
order and redaction protocol already in place.
Affirmed.
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