MILDALIA MADLINGER VS. NEW JERSEY TRANSIT CORPORATION (L-4844-14, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2310-16T2
MILDALIA MADLINGER,
Plaintiff-Respondent,
v.
NEW JERSEY TRANSIT CORPORATION,
Defendant-Appellant.
_______________________________________________
Argued October 2, 2017 – Decided October 30, 2017
Before Judges Messano, O'Connor, and Vernoia.
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Essex County, Docket No. L-4844-14.
Christopher J. Kelly, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Mr. Kelly, on the briefs).
Claudia A. Reis argued the cause for
respondent (Lenzo & Reis, LLC, attorneys; Ms.
Reis, of counsel and on the brief).
Dwyer & Barrett, LLC and Deutsch Atkins, PC,
attorneys for amicus curiae National
Employment Lawyers Association of New Jersey
(Andrew Dwyer, of counsel and on the brief;
Michael Malatino, on the brief).
PER CURIAM
We granted New Jersey Transit Corporation (NJT) leave to
appeal two orders entered by the Law Division: 1) clarifying a
prior order and compelling NJT to produce certain documents to
plaintiff, Mildalia Madlinger (the Clarification Order); and 2)
denying NJT's request that the judge enter a protective order or
conduct an in camera review of the documents beforehand. The
orders arose in the following context.
Plaintiff's complaint alleges discrimination based on gender,
ancestry and marital status under the Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -42, and retaliation under the LAD. She
claims that while working in the Marketing and Business Development
Department (Marketing) of NJT's Communications and Customer
Service Division since 2000, her supervisor and others had
subjected her to harassing conduct and disparate treatment.
Plaintiff served NJT with interrogatories and a request for
production of eighty-seven specific categories of documents.
NJT's response to the document request included more than one
thousand pages but also asserted objections to some requests,
refusing to produce what it characterized as "confidential
personnel records" and "confidential EEO records." Plaintiff
2 A-2310-16T2
filed a cross-motion1 seeking to compel discovery as to
specifically numbered document requests, including, among others,
those falling into four broad categories: claims made of similar
types of discrimination by other NJT Marketing employees since
2000; documents relating to a co-worker's discrimination complaint
and plaintiff's participation in its investigation; personnel
files of plaintiff's co-employees in Marketing; and plaintiff's
supervisor's personnel files. On August 19, 2016, the judge
entered an order compelling NJT to produce all documents to
plaintiff within seven days.2
NJT moved for clarification of the August 2016 order and a
protective order, asserting that most of the documents plaintiff
sought in these specific requests required disclosure of
"confidential" files, protected by regulation or Executive Orders.
It argued that production was inappropriate unless and until the
court conducted an in camera review. NJT's motion sought oral
argument if opposition was filed.
In her opposition, plaintiff's counsel certified that
although the parties engaged in discussions after entry of the
1
It appears NJT's motion sought dismissal for violation of Rule
4:23-4, or in the alternative, to extend discovery.
2
The cross-motion did not request oral argument and there
apparently was none.
3 A-2310-16T2
August order to expedite document production, NJT never advised
it would seek a protective order or otherwise attempt to avoid
production of the documents. She stated that NJT had not yet
produced "any of the discovery it was compelled to produce in the
August . . . order."
Apparently, without entertaining any oral arguments, the
judge entered the two orders under review. In denying NJT's motion
for a protective order or in camera review regarding EEO and
personnel files, the judge wrote on the order:
Any and all documents requested in Plaintiff's
original motion to Compel Discovery must be
produced within twenty . . . days of the date
of this Order as Plaintiff has already met
their [sic] burden of showing that the
requested material is relevant and not for an
illegitimate purpose. See Dixon v. Rutgers,
110 N.J. 432 (1988).
NJT argues compelling disclosure of the confidential EEO and
personnel files contained in paragraphs 2, 3, 4, 8, 9, 10 and 11
of the Clarification Order without in camera review is contrary
to precedent and public policy, and plaintiff has yet to establish
a particularized need for the documents or their relevancy. 3
Plaintiff argues that in the absence of any asserted privilege,
3
We deal with only those paragraphs of the order because they are
the only ones cited in NJT's brief. "An issue not briefed is
deemed waived." W.H. Indus., Inc. v. Fundicao Balancins, Ltda,
397 N.J. Super. 455, 459 (App. Div. 2008).
4 A-2310-16T2
courts are not required to engage in a time-consuming in camera
review of documents, particularly since these documents are
clearly relevant to her claims. She contends the judge
appropriately exercised her discretion by compelling NJT to
produce the documents without any court review or protective order.
Amicus Curiae National Employment Lawyers Association asserts the
sought-after documents are of the type generally discoverable in
discrimination suits, employers bear the burden of demonstrating
the documents are confidential and must be shielded from discovery,
and an in camera review is not mandatory in every case prior to
production.
We have considered the arguments of the parties. We reverse
and remand for further proceedings consistent with this opinion.
We "defer to a trial judge's discovery rulings absent an
abuse of discretion or a judge's misunderstanding or
misapplication of the law." Capital Health Sys. v. Horizon
Healthcare Servs., 230 N.J. 73, 79-80 (2017) (citing Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). Courts
"find[] an abuse of discretion when a decision is 'made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" US Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis
v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
5 A-2310-16T2
We begin by acknowledging that our "discovery rules are to
be construed liberally in favor of broad pretrial discovery."
Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997). Rule 4:10-
2(a) permits discovery of "any matter, not privileged, which is
relevant to the subject matter involved in the pending action."
"The relevance standard does not refer only to matters which would
necessarily be admissible into evidence, but includes information
reasonably calculated to lead to admissible evidence respecting
the cause of action or its defense." R.L. v. Voytac, 402 N.J.
Super. 392, 408 (App. Div. 2008) (citing Pfenninger v. Hunterdon
Cent. Reg'l High Sch., 167 N.J. 230, 237 (2001)). The relevancy
standard utilized by the Rule is "congruent with relevancy pursuant
to N.J.R.E. 401, namely, a tendency in reason to prove or disprove
any fact of consequence." Ibid. (citing Payton, supra, 148 N.J.
at 535).
Without question, complaints of discrimination made by other
employees against an employer are relevant on a number of fronts.
Connolly v. Burger King Corp., 306 N.J. Super. 344, 347-49 (App.
Div. 1997). Nevertheless, discovery of such material "must be
implemented by the trial court with some sensitivity to issues of
privacy, confidentiality and privilege," and "the trial court must
determine the appropriate time period from which the material must
6 A-2310-16T2
be produced," and, if the information is voluminous, "utilize
other techniques to manage the flow of material." Id. at 349-50.
In Payton, supra, 148 N.J. at 541, the Court reiterated that
"confidentiality is an important component of any policy designed
to maximize reporting of alleged sexual harassment and to ensure
the accuracy of ensuing investigations into such allegations."
But, it refused to adopt "a blanket privilege arising from
legitimate general concerns for confidentiality." Id. at 542.
Instead, the Court "recognize[d] a conditional privilege that
applies selectively depending on the nature of the materials
involved." Ibid. "[R]egarding confidentiality, the balance
weighs in favor of disclosure with appropriate procedures to ensure
justified confidentiality in light of plaintiff's paramount
interest in obtaining relevant materials." Id. at 544.
The Court recognized the judge's role was critical to the
proper application of this conditional privilege:
[T]he trial court may supervise discovery of
the relevant internal investigatory materials
and require procedures that protect the
confidentiality of those involved in the
investigation if a loss of confidentiality
would otherwise undermine the efficacy of
investigations. Such procedures, short of
suppression, may include redaction, issuance
of confidentiality or gag orders, and sealing
of portions of the record.
[Id. at 542.]
7 A-2310-16T2
In providing instructions on remand, the Payton court made clear
that the judge should assume the discoverability of any documents
relevant to the plaintiff's claims, and "then should provide [the]
defendant with the opportunity to make particularized assertions
of privilege or confidentiality regarding specific documents."
Id. at 559-60 (emphasis in original).
We disagree with plaintiff's assertion that the judge's
orders are entitled to the highly deferential standard of review
routinely given to the trial court's management of discovery
matters. Here, the judge's order reflects only that she concluded
plaintiff had demonstrated the relevancy of the documents
requested; she failed to consider the assertions of
confidentiality made by NJT. In so doing, the judge applied the
wrong standard.
Additionally, the judge abdicated her authority and
obligation to control discovery, which would have permitted her
to give careful consideration to these recognized competing
interests. In fairness, NJT failed to supply the judge with
"particularized assertions of . . . confidentiality regarding
specific documents." Ibid. We were advised at oral argument that
NJT offered to provide redacted and unredacted versions of the
documents for the judge's in camera review, but that assertion is
not borne out by anything in the record.
8 A-2310-16T2
Our analysis applies in equal force to production of the
personnel files, which are the subjects of paragraphs 9, 10 and
11 of the Clarification Order. Clearly, some of the material in
those records would be relevant to plaintiff's claim of disparate
treatment in salary and advancement. Material in her supervisor's
personnel file may be relevant to show NJT's response to other
claims of discrimination, if any, made against the supervisor. We
were advised at oral argument that NJT already provided certain
information to plaintiff from the personnel files, such as
salaries, educational background, etc., but, again, there is no
independent verification of that in the record.
Paragraph 8 of the Clarification Order compels production of
documents "pertaining to discipline or 'scolding' of employees in
. . . Marketing . . . for their conduct, behavior or attire from
January 1, 2000 to the present." NJT specifically argues that any
such information would be irrelevant to plaintiff's claims of
discrimination. However, plaintiff specifically alleges in her
complaint that she was "scolded" for her attire by her supervisor.
Theoretically, whether plaintiff was singled out for such
treatment could be relevant to her claim, and we reject NJT's
claim that she must further demonstrate particularized need or
relevancy.
9 A-2310-16T2
In sum, we reverse paragraphs 2, 3, 4, 8, 9, 10 and 11 of the
Clarification Order, vacate the order denying NJT's request for a
protective order and in camera review, and remand to the court for
further proceedings that provide NJT with an opportunity to assert
particularized objections as to specific documents before
production, and for the judge to assess those objections in camera.
We defer to the judge's discretion as to how this is best
accomplished, as well as any other proceedings that necessarily
manage all discovery so as to consider the competing interests of
discoverability and confidentiality detailed by the Court in
Payton.
Reversed in part; vacated in part; remanded. We do not retain
jurisdiction.
10 A-2310-16T2