Martin O'boyle v. Borough of Longport

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Martin E. O’Boyle v. Borough of Longport (A-16-12) (070999)
Argued November 18, 2013 -- Decided July 21, 2014
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court addresses the application of the common interest rule, which extends the
confidentiality of attorney-client communications and attorney work product to information shared with attorneys
representing separate clients, in the context of a request for production of public records pursuant to the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right to access government records.
Martin E. O’Boyle is a resident of the Borough of Longport who previously filed several complaints
against the Borough and its officials regarding Borough governance. In 2008 and 2009, O’Boyle filed separate
lawsuits against a former planning and zoning board member, Peter Isen, and two Longport residents. David Sufrin,
the private attorney representing Isen and the Longport residents, suggested to Longport’s municipal attorney that
they cooperate in the defense of current and anticipated litigation filed by O’Boyle. To that end, Sufrin prepared a
joint strategy memorandum and a compendium of documents contained on CDs and sent them to the municipal
attorney. In time, the municipal attorney returned the assembled documents to Sufrin.
O’Boyle submitted OPRA and common law right of access requests to the Borough Clerk that
encompassed the materials exchanged between Sufrin and the municipal attorney. Longport withheld those
materials from its production, asserting that they were privileged. O’Boyle filed a verified complaint seeking access
to the withheld documents pursuant to OPRA and the common law right of access. The trial court dismissed the
case with prejudice, determining that the withheld documents were not public records subject to production under
either law. The Appellate Division affirmed. O’Boyle v. Borough of Longport, 426 N.J. Super. 1 (App. Div. 2012).
The panel assumed that the withheld materials were public records and found that the materials constituted Sufrin’s
protected attorney work product. The panel held that the materials remained privileged, despite being shared with
the municipal attorney, under the common interest rule. The Appellate Division also concluded that the withheld
documents did not have to be produced under the common law right of access because, even if the materials were
public documents, O’Boyle’s interest in accessing the materials did not overcome Longport’s interest in withholding
them. The Court granted O’Boyle’s petition for certification. 212 N.J. 431 (2012).
HELD: The Court expressly adopts the common interest rule as articulated in LaPorta v. Gloucester County Board
of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001). Applying that rule, the private attorney’s protected
attorney work product remained privileged despite its disclosure to the third-party municipal attorney because the
materials were shared in a manner calculated to preserve their confidentiality, in anticipation of litigation, and in
furtherance of a common purpose. The requestor also failed to articulate a particularized need for the withheld
materials as required to obtain privileged materials under the common law right of access.
1. The attorney-client privilege shields the disclosure of documents otherwise accessible under OPRA. K.L. v.
Evesham Twp. Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). The
attorney-client privilege is ordinarily waived when a confidential communication is revealed to a third party, unless
the communication is disclosed to the third party to advance the legal representation. Rawlings v. Police Dep’t of
Jersey City, 133 N.J. 182 (1993). Over the years, various relationships have formed to permit an exchange of
confidential attorney-client communications beyond the narrow confines of the attorney and client and a third party
retained to assist the representation. The common interest rule was first discussed in the context of the attorney-
client privilege In re State Comm’n of Investigation Subpoena No. 5441 (SCI), 226 N.J. Super. 461 (App. Div.),
certif. denied, 113 N.J. 382 (1988). In SCI, the court held that a client’s confidential sharing of a report created by
its attorney in anticipation of litigation with an “interrelated” non-client entity with “a common interest” did not
waive the attorney-client privilege. The Restatement (Third) of the Law Governing Lawyers § 76(1) (2000)
(Restatement) also recognizes that the exchange of confidential information between or among two or more clients
with a common interest in a litigated or non-litigated matter, who are represented by different attorneys, preserves
the privilege against third parties. (pp. 13-20)
2. The work-product doctrine also shields the disclosure of documents otherwise accessible under OPRA. Sussex
Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531 (2012). In most instances, disclosure by an
attorney of his or her protected work product to a third party functions as a waiver of the protection. N.J.S.A.
2A:84A-29; N.J.R.E. 530. In LaPorta v. Gloucester County Board of Chosen Freeholders, 340 N.J. Super. 254
(App. Div. 2001), the Appellate Division applied the common interest rule in the work-product context, concluding
that that the rule may extend the protection of work product shared “among counsel for different parties if (1) the
disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and
(3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties.” Id.
at 262. The panel emphasized that it is not necessary for the interest of every party to be identical; instead, the focus
is whether the parties have a common purpose, measured at the time the protected documents are disclosed. Id. at
262-63. The panel also found it is sufficient that litigation is contemplated, rather than commenced, for the common
interest rule to apply; that the common interest applies in civil or criminal proceedings; and that, in addition to
communication between counsel, the rule protects communication “between counsel for a party and an individual
representative of a party with a common interest.” Id. at 262. Although the common interest rule applies in both the
attorney-client privilege and the work-product context, the scope of protected sharing depends on which privilege
applies because the work-product doctrine permits disclosure to a wider circle of third-parties without waiver of the
privilege than the attorney-client privilege. (pp. 20-32)
3. Access to public documents may also be procured in accordance with the common law right of access. Unlike
OPRA, disclosure pursuant to the common law right of access “must be balanced against the State’s interest in
preventing disclosure.” Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274 (2009). In order to determine whether
the common law right of access applies to a particular set of records, a court must first determine whether the
documents in question are “public records.” Atl. City Convention Ctr. Auth. v. S. Jersey Publ’g Co., 135 N.J. 53
(1994). Second, the party seeking disclosure must show that he has an interest in the public record. If the record is
privileged, the requestor must articulate a “particularized need.” Wilson v. Brown, 404 N.J. Super. 557 (App. Div.)
(citing McClain v. Coll. Hosp., 99 N.J. 346 (1985)), certif. denied, 198 N.J. 473 (2009). Finally, once an interest is
established, the burden shifts to the public entity to establish that its need for non-disclosure outweighs the
plaintiff’s need for disclosure. Educ. Law Ctr., 198 N.J. at 303. (pp. 32-33)
4. The common interest rule is designed to permit the free flow of information between or among counsel who
represent clients with a commonality of purpose. It offers all parties to the exchange the real possibility for better
representation by making more information available to inform decision-making in anticipation of litigation.
Although the Court recognizes that any privilege, including the attorney-client privilege and work-product
protection, restricts the disclosure of information and may intrude on the fact-finding function of litigation, the Court
finds that the rule recognized in LaPorta strikes an acceptable balance of competing interests. The Court, therefore,
expressly adopts the common interest rule as articulated in LaPorta. Common purpose extends to sharing of trial
preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same
litigated matter or anticipated matter. The rule also encompasses the situation in which certain disclosures of
privileged material are made to another attorney who shares a common purpose, for the limited purpose of
considering whether he and his client should participate in a common interest arrangement. (pp. 33-37)
5. The protected attorney work product disclosed by Sufrin to the municipal attorney remained privileged pursuant
to the common interest rule. Sufrin and Longport shared a common purpose at the time of the disclosure because
Longport had defended many civil actions filed against it by O’Boyle and anticipated further litigation from
O’Boyle, and Sufrin was attempting to defend a civil action commenced by O’Boyle arising out of one client’s
official position and others’ participation in civic affairs. Sufrin also disclosed his work product in a manner
calculated to preserve its confidentiality. There is no evidence that the municipal attorney shared the material with
anyone else, including O’Boyle. Once the municipal attorney declined to enter a joint defense strategy, he returned
the privileged material, thereby minimizing even an inadvertent disclosure. Finally, although privileges may be
overcome by a showing of particularized need under the common law right of access, O’Boyle failed to demonstrate
a particularized need for the privileged material supplied to the municipal attorney. (pp. 37-39)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and ALBIN and JUDGE RODRÍGUEZ
(temporarily assigned) join in JUDGE CUFF’s opinion. JUSTICE PATTERSON did not participate.
2
SUPREME COURT OF NEW JERSEY
A-16 September Term 2012
070999
MARTIN E. O'BOYLE,
Plaintiff-Appellant,
v.
BOROUGH OF LONGPORT, and
THOMAS HILTNER in his
capacity as Borough of
Longport Clerk and Custodian
of Records,
Defendants-Respondents.
Argued November 18, 2013 – Decided July 21, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 426 N.J. Super. 1 (2012).
Jonathan R. O'Boyle, a member of the
Pennsylvania bar, and Walter M. Luers argued
the cause for appellant (Mr. Luers,
attorney).
Gene R. Mariano argued the cause for
respondents (Parker McCay, attorneys; Stacy
L. Moore, Jr., on the brief).
Matthew T. Nelson, a member of the Michigan
bar, argued the cause for amicus curiae DRI-
The Voice of the Defense Bar (Goldberg
Segalla, attorneys; Mr. Nelson, Michael J.
Leegan, and Mary Massaron Ross, a member of
the Michigan bar, on the brief).
Thomas Hoff Prol argued the cause for amicus
curiae New Jersey State Bar Association
(Paris P. Eliades, President, attorney; Mr.
McCann, of counsel; Mr. Prol and Mr. McCann,
on the brief).
Jeffrey S. Mandel argued the cause for amici
curiae Association of Criminal Defense
Lawyers of New Jersey and The National
Association of Criminal Defense Lawyers
(PinilisHalpern, attorneys; Mr. Mandel and
Jenny E. Carroll, on the brief).
Edward J. Fanning, Jr., submitted a brief on
behalf of amicus curiae New Jersey Defense
Association (McCarter & English, attorneys;
Mr. Fanning and Roktim Kaushik, on the
brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This appeal allows the Court to address the application of
the common interest rule, which extends the confidentiality of
attorney-client communications and attorney work product to
information shared with attorneys representing separate clients,
in the context of a request for production of public records
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13, and the common law right to access government records.
Although the common interest rule has been addressed in two
published Appellate Division opinions, this is the first
opportunity for this Court to address the rule.
Martin E. O’Boyle is a resident of the Borough of Longport
(Borough or Longport), a small, oceanside town in Cape May
County. We discern from the record that he has taken an active
interest in the affairs of the municipality in the course of
which he has attended public meetings, questioned public
2
officials, and offered comments on matters of public interest.
He also has made many requests for access to public records
pursuant to OPRA and the common law right of access, and filed
several complaints against the Borough and its officials
regarding governance of the Borough. In 2008 and 2009, O’Boyle
filed separate lawsuits against a former planning and zoning
board member, Peter Isen,1 and two Longport residents, Frank
DiLorenzo, Sr. and Anthony DiLorenzo, Sr.
The private attorney representing Isen and the Longport
residents suggested to the municipal attorney that they
cooperate in the defense of current and anticipated litigation
filed by O’Boyle. To that end, the private attorney prepared a
joint strategy memorandum and a compendium of documents
contained on CDs and sent them to the municipal attorney. In
time, the municipal attorney returned the assembled documents to
the other attorney.
O’Boyle submitted OPRA and common law right of access
requests to the Borough Clerk. The requests encompassed the
documents exchanged between the private attorney and the
municipal attorney. Longport filed a timely response producing
all but six documents exchanged between the private attorney and
the municipal attorney. Longport asserted that those documents
1
The Appellate Division affirmed an order granting summary
judgment and dismissing O’Boyle’s defamation action against Isen
in an unpublished September 2011 opinion.
3
were privileged. O’Boyle filed a complaint in the Superior
Court to obtain the withheld documents. The trial court
dismissed the case with prejudice, determining that the withheld
documents were not public records subject to production pursuant
to OPRA or the common law right of access. On appeal, the
Appellate Division assumed that the withheld documents were
public records, and concluded the exchanged documents
constituted work product of the private attorney and were not
subject to production. The panel invoked the common interest
rule, concluding that the municipal residents and the former
municipal official represented by the private attorney and
Longport shared a common interest that permitted non-disclosure
of the withheld documents.
After examining the arguments presented by the parties and
amici to either broaden, narrow, or restate the common interest
rule as expressed in LaPorta v. Gloucester County Board of
Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001), we
decline to do so. Rather, we expressly adopt the common
interest rule as articulated in LaPorta. We also conclude that
the Appellate Division properly determined that the parties to
the pending and anticipated O’Boyle litigation shared a common
purpose and that O’Boyle failed to demonstrate a particularized
need to access the shared work product. Therefore, neither OPRA
4
nor the common law permits access to the shared work product,
and we affirm the judgment of the Appellate Division.
I.
On April 23, 2010, O’Boyle requested copies of certain
designated records pursuant to OPRA and the common law right of
access. On May 4, 2010, Longport supplied some documents but
refused to produce the following documents:
1) An August 20, 2009 letter from the
municipal attorney to David Sufrin, counsel
for Isen and the Longport residents;
2) A September 18, 2009 letter from Sufrin
to the municipal attorney captioned
“Confidential: Joint-Defense Strategy
Memorandum – Attorney Joint Defense Work
Product not for Disclosure to Third
Parties”;
3) A September 29, 2009 letter from Sufrin
to the municipal attorney captioned
“Confidential Joint-Defense Attorney Work
Product”;
4) A second September 29, 2009 letter from
Sufrin to the municipal attorney accompanied
by two CDs;
5) An undated letter from Sufrin to the
municipal attorney reviewed by the municipal
attorney on October 20, 2009; and
6) The contents of a third CD Sufrin
provided to the municipal attorney reviewed
by the municipal attorney on October 14,
2009.
Longport claimed the withheld documents were privileged, and
further noted that those documents were not in Borough custody
5
because the municipal attorney had returned the CDs to Sufrin
before O’Boyle filed his OPRA request.
O’Boyle filed a verified complaint in the Superior Court
seeking access to the withheld documents pursuant to OPRA and
the common law right of access. The trial court conducted an in
camera review of the correspondence and held oral argument.
Although the court characterized the correspondence as
“relatively short, innocuous letters” of no interest to O’Boyle,
the court also determined that neither the correspondence nor
the CDs were public records and that they were protected by the
attorney-client privilege. Furthermore, the trial court
concluded it could not compel Sufrin to disclose the returned
CDs because he was not an agent of the municipality. Therefore,
the court dismissed the complaint and sealed the correspondence.
On appeal, the Appellate Division affirmed the trial
court’s order. In a published opinion, O’Boyle v. Borough of
Longport, 426 N.J. Super. 1 (App. Div. 2012), the appellate
panel did not resolve whether the requested documents were
public records pursuant to OPRA. Rather, assuming the requested
documents were public records, the panel determined that the
documents were of the sort protected by the work-product
doctrine and that OPRA does not abrogate any grant of
confidentiality recognized by statute, court rule, or common
law. Id. at 8-9. Furthermore, the appellate panel recognized
6
that the common interest rule applies with equal force to
communications protected by the attorney-client privilege and
the work-product doctrine. Id. at 9-10. Noting that Sufrin’s
clients had been sued by O’Boyle as a result of their connection
to the Borough and their involvement in governance of the
Borough, and that the Borough reasonably anticipated further
litigation with O’Boyle, the panel concluded that “Sufrin’s
clients and these defendants . . . share a common interest . . .
i.e., the defense of litigation spanning several years initiated
by [O’Boyle] related to his ongoing conflicts with Longport and
individuals associated with the municipality.” Id. at 11-12.
Therefore, the Appellate Division determined that the letters
and CDs were protected by the work-product doctrine and that
OPRA did not require access by O’Boyle to these documents. Id.
at 12.
The Appellate Division also concluded that the withheld
documents were not subject to production pursuant to the common
law right of access. Id. at 13. Although the common law right
includes more documents as public records, the panel determined
that the letters and CDs produced by Sufrin were not public
records. Ibid. Furthermore, the municipal attorney’s letter to
Sufrin was not written “in the exercise of a public function.”
Ibid. Assuming, however, that the letter from the municipal
attorney could be considered a public document because it was
7
written to further the interest of the municipality, the
Appellate Division concluded that O’Boyle’s interest in access
to the letter did not overcome Longport’s interest in
withholding documents considered by its attorney in anticipation
of litigation with the requestor. Id. at 13-14. Finally, the
panel concluded that the trial court was not required to view
the contents of the CDs. Id. at 14. The panel reasoned that
the documents returned to Sufrin had not been prepared by him at
the behest of the municipality or the municipal attorney. Ibid.
Furthermore, the documents had been returned to Sufrin in
compliance with his request rather than a desire to shelter
otherwise producible documents. Ibid. The Court granted
O’Boyle’s petition for certification. 212 N.J. 431 (2012).
II.
A.
O’Boyle contends that the withheld records are government
records pursuant to OPRA. Indeed, he contends that almost every
record generated by employees of a public entity, with the
exception of “junk mail” and personal exchanges between
municipal employees, are government records. He argues that
OPRA reaches documents prepared and maintained by third parties
acting as agents of a public entity. O’Boyle urges that the
analysis must focus on the scope of the authority of the public
entity agent, not his or her title. Employing this analysis
8
leads to the conclusion that documents received by the municipal
attorney must be considered government records. Furthermore,
O’Boyle contends that the withheld documents clearly fall within
the broad common-law definition of public records.
O’Boyle urges that the Appellate Division’s interpretation
of the common interest rule is too broad. He asserts that the
rule should be limited to situations in which the parties “have
strictly legal interests in the same transaction or occurrence;
and protect only those communications which are related to and
in furtherance of those interests.” Furthermore, O’Boyle argues
that the common interest rule articulated in LaPorta is vague
and does not clearly define when parties have the requisite
relationship to permit sharing confidential communications. By
contrast, he asserts that the rule he advances will “smother
uncertainty” and prevent inadvertent disclosure of confidential
communications.
O’Boyle also contends that this Court should affirm the
current law in this State that disclosure of work product waives
the privilege “unless the disclosure is specifically protected
by law.” He contends that Sufrin voluntarily shared the
materials with the municipal attorney with little or no regard
for the OPRA implications of his action and in a manner that
substantially increased the likelihood of distribution to third
parties, such as him. Finally, he suggests that the purported
9
basis of the common interest rule was negated when Longport
declined the cooperation overture.
B.
Longport and Thomas Hiltner, the Borough Clerk and
Custodian of Records, argue that the trial court properly denied
access to the withheld documents. First, they contend that the
documents prepared by a third party in the course of
representing private individuals are not public records within
the scope of OPRA or the common law right of access. Second,
Longport and Hiltner argue that the records obtained by the
attorney representing Longport are not subject to disclosure
because they are subject to the privilege accorded to attorney-
client communications and attorney work product. They contend
the documents were prepared in anticipation of litigation and
the brief review by the municipal attorney did not convert those
documents into public records subject to review pursuant to OPRA
or the common law right of access. Finally, Longport and
Hiltner contend that the return of the documents to Sufrin at
his request precluded production of the requested documents.
C.
Amicus curiae New Jersey State Bar Association (NJSBA)
requests that the Court provide “the widest berth by which
attorneys can advocate for their clients in free and unburdened
fashion without fear they are susceptible to having their
10
thoughts and ideas made accessible and used against them by an
adversary.” NJSBA urges that attorneys “should be reasonably
unfettered” when they work with other attorneys with mutual
interests and common goals to pursue a litigation strategy
designed to benefit the interests of their clients. To that
end, NJSBA urges that documents exchanged between private
counsel representing a former municipal official and others
involved in municipal affairs and the municipal attorney should
enjoy the protection afforded by the common interest rule,
whether the exchange implicates the attorney-client privilege or
the companion work-product doctrine.
Furthermore, NJSBA argues that the protection afforded by
the common interest rule or joint defense doctrine2 should not
depend on a written agreement between or among the attorneys.
Rather, such an agreement may be readily implied by the efforts
undertaken by the participating attorneys to assure non-
disclosure to adverse parties.
Amici Association of Criminal Defense Lawyers of New Jersey
(ACDL-NJ) and the National Association of Criminal Defense
Lawyers (NACDL) argue that the Court should interpret the joint
defense doctrine to include exchanges of information between
attorneys that are intended to be confidential and that are
2
The terms “joint defense doctrine” and “common interest rule”
are used interchangeably by some.
11
exchanged pursuant to a common interest. The exchanged
information may otherwise be confidential communications between
attorney and client or work product. Amici urge that the
communication must relate to a common interest which may be
legal, factual, or strategic, measured by the interest at the
time the information is disclosed. Furthermore, like NJSBA,
ACDL-NJ and NACDL contend that an agreement to exchange
confidential information or work product need not be reduced to
writing.
Amicus New Jersey Defense Association (NJDA) argues that
the common interest doctrine “finds its origins” in the
attorney-client privilege, that the doctrine has been adopted in
this State, and has been applied in the work-product context.
NJDA asserts, however, that the Appellate Division adopted an
unreasonably broad definition of government records in its
opinion. Amicus contends that documents prepared by private
counsel for a private citizen should not be transformed into a
government record simply by sharing those documents with the
attorney representing the municipality.
Amicus DRI-The Voice of the Defense Bar (DRI) contends that
the Appellate Division appropriately concluded that the
documents withheld by Longport were protected from disclosure.
It observes, however, that the appellate panel followed the
minority rule and “applied the waiver rules governing attorney-
12
client privilege to the work-product doctrine.” It urges that
this Court should affirm the Appellate Division’s result but
adopt the majority approach to waiver of the work-product
doctrine. DRI asserts the majority approach is more conducive
to collaboration and cooperation between and among attorneys.
III.
This appeal addresses the intersection of two well-
recognized public policies. One is the public policy favoring
access to “information to enable the public to understand and
evaluate the reasonableness” of action taken by a public entity.
Kuehne Chem. Co. v. N. Jersey Dist. Water Supply Comm’n, 300
N.J. Super. 433, 438 (App. Div.), certif. denied, 151 N.J. 466
(1997). The other is the need for an attorney and his client to
communicate in confidence and the closely related need for an
attorney to keep work performed for a client from disclosure to
an adversary. OPRA addresses the ability of the public to gain
access to government records. The attorney-client privilege and
the work-product doctrine bestow the confidentiality needed to
foster a client’s best interests. Here, we address the
application of the common interest rule as it applies to the
attorney-client privilege and work-product doctrine and its
impact on the public right to access government records granted
by OPRA and the common law.
13
The Legislature adopted OPRA “‘to maximize public knowledge
about public affairs in order to ensure an informed citizenry
and to minimize the evils inherent in a secluded process.’”
Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury
Park Press v. Ocean Cnty. Prosecutor’s Office, 374 N.J. Super.
312, 329 (Law Div. 2004)). To that end, OPRA “shall be
construed in favor of the public’s right to access.” N.J.S.A.
47:1A-1.
OPRA defines “[g]overnment record” broadly, to include
any paper . . . information stored or
maintained electronically or by sound-
recording or in a similar device, or any
copy thereof, that has been made, maintained
or kept on file in the course of his or its
official business by any officer . . . of
the State . . . , or that has been received
in the course of his or its official
business by any such officer . . . . The
terms shall not include inter-agency or
intra-agency advisory, consultative, or
deliberative material.
[N.J.S.A. 47:1A-1.1.]
This Court has considered “any document kept on file or
received in the course of the official business of an ‘agency’
of a political subdivision [as] a government record.” Fair
Share Hous. Ctr., Inc. v. N.J. State League of Municipalities,
207 N.J. 489, 508 (2011).
Despite the expansive definition of government record, not
all documents prepared by public employees are considered
14
government records pursuant to OPRA. See Bart v. City of
Paterson Hous. Auth., 403 N.J. Super. 609, 617 (App. Div. 2008),
certif. denied, 198 N.J. 316 (2009). For example, a board of
education secretary’s informal, handwritten notes taken during a
board meeting to assist her preparation of formal minutes of the
board meeting are not subject to public access pursuant to OPRA.
See O’Shea v. W. Milford Bd. of Educ., 391 N.J. Super. 534, 536-
38 (App. Div.), certif. denied, 192 N.J. 292 (2007). On the
other hand, a document by a third party, such as a bill for
services prepared by an attorney retained by a public entity and
submitted to it for payment, is subject to public access
pursuant to OPRA. Hunterdon Cnty. Policemen’s Benevolent Ass’n
Local 188 v. Twp. of Franklin, 286 N.J. Super. 389, 393 (App.
Div. 1996).
A government record may be excluded from disclosure by
other statutory provisions or executive orders, N.J.S.A. 47:1A-
9(a), or exempt from disclosure due to a recognized privilege or
grant of confidentiality established in or recognized by the
State Constitution, statute, court rule, or judicial decision,
N.J.S.A. 47:1A-9(b).
The attorney-client privilege is a recognized privilege
that may shield documents that otherwise meet the OPRA
definition of government record from inspection or production.
K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 352-53
15
(App. Div. 2011), certif. denied, 210 N.J. 108 (2012); Gannett
N.J. Partners, L.P. v. Cnty. of Middlesex, 379 N.J. Super. 205,
218 (App. Div. 2005). Documents that fall within the scope of
the work-product doctrine are also shielded from OPRA. Sussex
Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531,
548 (2012).
A.
Confidential communications between a client and his
attorney in the course of a professional relationship are
privileged. N.J.S.A. 2A:84A-20; N.J.R.E. 504. However, the
privilege does not attach to a communication knowingly made
within the hearing of any person whose presence nullifies the
privilege. N.J.R.E. 504(3). In other words, the privilege
protects only those communications expected or intended to be
confidential. Coyle v. Estate of Simon, 247 N.J. Super. 277,
282 (App. Div. 1991).
The privilege is not restricted to legal advice. Rivard v.
Am. Home Prods., Inc., 391 N.J. Super. 129, 154 (App. Div.
2007). The privilege also extends to consultations with third
parties whose presence and advice are necessary to the legal
representation. State v. Davis, 116 N.J. 341, 361 (1989).
Furthermore, the privilege survives the termination of the
attorney-client relationship. Id. at 362. The privilege must
yield, however, in furtherance of “overriding public policy
16
concerns,” United Jersey Bank v. Wolosoff, 196 N.J. Super. 553,
563 (App. Div. 1984), or other important societal concerns, In
re Kozlov, 79 N.J. 232, 243-44 (1979).
The attorney-client privilege is ordinarily waived when a
confidential communication between an attorney and a client is
revealed to a third party. Stengart v. Loving Care Agency,
Inc., 201 N.J. 300, 323 (2010). If, however, the third party is
a person to whom disclosure of confidential attorney-client
communications is necessary to advance the representation,
disclosure will not waive the privilege. Rawlings v. Police
Dep’t of Jersey City, 133 N.J. 182, 196 (1993); State v.
Kociolek, 23 N.J. 400, 413 (1957).
Over the years, various relationships have formed to permit
an exchange of confidential attorney-client communications
beyond the narrow confines of the attorney and client and a
third party retained to assist the defense while preserving the
privileged character of the disclosed communication. The joint
defense agreement between or among individuals subject to a
criminal investigation or indictment is the precursor to the
current common interest rule. See 8 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2024 at 210
(1st ed. 1970). The common interest rule, however, is not
confined to criminal matters. See In re State Comm’n of
17
Investigation Subpoena No. 5441 (SCI), 226 N.J. Super. 461 (App.
Div.), certif. denied, 113 N.J. 382 (1988).
The first discussion of the common interest rule in a
reported decision in this State addressed the rule in the
context of the attorney-client privilege. In SCI, supra, the
State Commission of Investigation subpoenaed a report prepared
by an attorney retained by the New Jersey School Boards
Association (the Association). 226 N.J. Super. at 464. The
Association retained an attorney to conduct an investigation, to
provide legal advice, to make recommendations, and to take steps
in anticipation of litigation arising from alleged improprieties
in the investment procedures of the insurance group created by
the organization. Id. at 463. The attorney prepared a written
report and shared it with the Association, which in turn shared
it with trustees of the insurance group. Id. at 464. Measures
were taken to ensure the confidentiality of the report from
disclosure to anyone outside those carefully delineated and
inter-related groups. Ibid.
The Appellate Division held that sharing the report with
trustees of the Association insurance group did not waive the
attorney-client privilege. Id. at 468. In so holding, the
panel explained that
[t]he two entities are formally
interrelated, the Group having been created
at the instance of [the Association]. The
18
operations of the entities are at least as
closely intertwined as are sister or parent-
subsidiary corporations . . . . Because of
their interrelationships, [the Association]
and the Group have a common interest in the
operation of the Group and the SCI
investigation of the Group. Indeed, [the
attorney] was retained because of [the
Association]’s direct and patent interest in
the operations of the Group.
[Id. at 467-68.]
The Restatement (Third) of the Law Governing Lawyers §
76(1) (2000) (Restatement) recognizes that the exchange of
confidential information between or among two or more clients
with a common interest in a litigated or non-litigated matter,
who are represented by different attorneys, preserves the
privilege against third parties. The rule “permits persons who
have common interests to coordinate their positions without
destroying the privileged status of their communications with
their lawyers.” Id. at § 76(1) cmt. b. In doing so,
the common-interest privilege somewhat
relaxes the requirement of confidentiality .
. . by defining a widened circle of persons
to whom clients may disclose privileged
communications. . . . [Privileged]
communications of several commonly
interested clients remain confidential
against the rest of the world, no matter how
many clients are involved. However, the
known presence of a stranger negates the
privilege for communications made in the
stranger’s presence.
[Id. at § 76(1) cmt. c.]
19
According to the Restatement, supra, the permissible extent
of common interest disclosures is not unlimited. Direct
communications of privileged information between or among the
clients will not retain their privileged character unless made
for the purpose of communication with a privileged person, and
the communication must relate to the common interest which may
be legal, factual, or strategic. Id. at § 76(1) cmts. d. and e.
On the other hand, “[t]he interests of the separately
represented clients need not be entirely congruent.” Id. at §
76(1) cmt. e.
The application of the common interest rule in the context
of the attorney-client privilege in SCI is consistent with the
Restatement rule. To be sure, disclosure of the report prepared
by the Association to its insurance group trustees widened the
circle to whom privileged communications may be made. However,
the Association trustees and the insurance group trustees had a
common interest in identifying any mismanagement in the
insurance program and rectifying any problems.
B.
Documents that satisfy the OPRA definition of government
record are not subject to public access if they fall within the
work-product doctrine. Sussex Commons, supra, 210 N.J. at 542;
K.L., supra, 423 N.J. Super. at 352-53; Gannett, supra, 379 N.J.
20
Super. at 218-19. This doctrine was first recognized in
Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451
(1947). In Hickman, the owners and underwriters of a tug boat
hired a law firm to defend against potential litigation after
the boat sank and five crewmembers drowned. Id. at 498, 67 S.
Ct. at 387, 91 L. Ed. at 455. One of the retained lawyers
interviewed survivors and prepared a report based on his notes
of the interviews. Id. at 498-99, 67 S. Ct. at 387-88, 91 L.
Ed. at 455-56. The Court protected those documents from
discovery, concluding that such materials “fall[] outside the
arena of discovery and contravene[] the public policy underlying
the orderly prosecution and defense of legal claims.” Id. at
510, 67 S. Ct. at 393, 91 L. Ed. at 462.
In justifying the work-product doctrine, the Court
recognized the need for lawyers to “work with a certain degree
of privacy, free from unnecessary intrusion by opposing parties
and their counsel.” Ibid. The Court expressed its concern that
without adequate protection of the product of an attorney’s
work, justice and clients’ best interests would be undermined.
Id. at 511, 67 S. Ct. at 393, 91 L. Ed. at 462. Accordingly,
although the Court acknowledged the importance of discovery of
non-privileged documents to achieve a court’s truth-seeking
function, it determined that “the general policy against
invading the privacy of an attorney’s course of preparation” is
21
so important “that a burden rests on the one who would invade
that privacy to establish adequate reasons to justify
production.” Id. at 512, 67 S. Ct. at 393, 91 L. Ed. at 462.
New Jersey first codified the work-product doctrine in
1948. R. 3:26-2. The rule was considered broader than the rule
recognized in Hickman. Crisafulli v. Pub. Serv. Coordinated
Transp., 7 N.J. Super. 521, 523 (Cty. Ct. 1950); Note,
Discovery: New Jersey Work Product Doctrine, 1 Rutgers L.J. 346,
348-49 (1969).
Today, the work-product doctrine is codified in Rule 4:10-
2. It provides that
[a] party may obtain discovery of documents,
electronically stored information, and
tangible things otherwise discoverable . . .
and prepared in anticipation of litigation
or for trial by or for another party or by
or for that other party’s representative
(including an attorney, consultant, surety,
indemnitor, insurer or agent) only upon a
showing that the party seeking discovery has
substantial need of the materials in the
preparation of the case and is unable
without undue hardship to obtain the
substantial equivalent of the materials by
other means. In ordering discovery of such
materials when the required showing has been
made, the court shall protect against
disclosure of the mental impressions,
conclusions, opinions, or legal theories of
an attorney or other representative of a
party concerning litigation.
[R. 4:10-2(c).]
22
In most instances, disclosure by an attorney of his or her work
product to a third party functions as a waiver of the protection
accorded to an attorney’s work product. N.J.S.A. 2A:84A-29;
N.J.R.E. 530. However, there are circumstances when disclosure
of work product to a third party is entirely consistent with the
confidentiality that is accorded to work product and does not
waive the protection afforded to it. Disclosure consistent with
the common interest rule is one of those circumstances.
In LaPorta, supra, the Appellate Division applied the
common interest rule in a work-product context. 340 N.J. Super.
at 262. The issue arose in a wrongful termination action filed
by a county employee when his public employer refused to
reinstate him following his acquittal of federal criminal
charges not related to his public employment. Id. at 257-58.
At the conclusion of the federal criminal proceedings, material
was remitted to the county counsel, who commenced an additional
investigation of LaPorta’s activities as a public employee.
Ibid. County counsel, in turn, prepared certain documents and
submitted them to the county prosecutor. Id. at 258. No
criminal charges ensued from this investigation. Ibid.
LaPorta, however, subpoenaed documents in the possession of the
county prosecutor in the course of his civil litigation against
the county. Ibid.
23
The Appellate Division held that a memo prepared by the
county counsel about his investigation, a memo from the person
holding LaPorta’s position on a temporary basis to the county
counsel in response to an inquiry from him, and a lengthy
statement given by the county counsel to the county prosecutor
were county counsel’s work product and that the county counsel
did not waive the privilege afforded by the work-product
doctrine when he shared those documents with the county
prosecutor. Id. at 259. In reaching this result, the appellate
panel concluded that
[t]he common interest exception may be
asserted with respect to communications
among counsel for different parties if “(1)
the disclosure is made due to actual or
anticipated litigation; (2) for the purposes
of furthering a common interest; and (3) the
disclosure is made in a manner not
inconsistent with maintaining
confidentiality against adverse parties.”
Holland v. Island Creek Corp., 885 F. Supp.
4, 6 (D.D.C. 1995); see also In re Bevill,
Bresler & Shulman, 805 F.2d 120, 126 (3d
Cir. 1986). It is not necessary for actual
litigation to have commenced at the time of
the transmittal of information for the
privilege to be applicable. U.S. v.
Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989),
cert. denied, 502 U.S. 810, 112 S. Ct. 55,
116 L. Ed. 2d 31 (1991). Indeed,
communications need not only be among
counsel for the clients. Communications
between counsel for a party and an
individual representative of a party with a
common interest are also protected. Ibid.
[Id. at 262.]
24
The panel also emphasized that it is not necessary for the
interest of every party to be identical. Ibid. Instead, the
focus is whether the parties have a common purpose. Ibid.
Application of those principles led to the conclusion that
the documents sought by LaPorta were not subject to production.
Id. at 263. The Appellate Division reasoned that the county
counsel, as the representative of the public employer, and the
county prosecutor shared a common purpose of barring LaPorta’s
reinstatement to public employment because of his perceived
illegal conduct while performing his public duties. Ibid.
Furthermore, whether the parties who share otherwise privileged
communications share a common purpose is measured at the time
the protected documents or communications are disclosed. Ibid.
It is of no moment that the cooperation between the county
counsel and county prosecutor did not yield criminal charges.
Ibid.
C.
Although the common interest rule is firmly rooted in the
attorney-client privilege, Schwimmer, supra, 892 F.2d at 244,
disclosure of work product to third parties with a common
interest may not destroy the privileged character of the work
product. New Jersey applies the common interest doctrine in the
context of sharing confidential communications between an
attorney and client with third parties and in the context of
25
sharing work product with third parties. The test articulated
in LaPorta applies in both contexts.
Most jurisdictions that recognize the common interest rule,3
as well as the Restatement, recognize a wider set of
circumstances in which disclosure of work product to a third
party, including those with a common interest, will preserve the
protection afforded to work product than when the disclosure to
a third party involves confidential communications protected by
the attorney-client privilege. In United States v.
Massachusetts Institute of Technology (MIT), 129 F.3d 681, 687
(1st Cir. 1997), the Court of Appeals observed that disclosure
“outside the magic circle” invariably leads to the conclusion
that the attorney-client privilege has been waived. By
contrast, the work-product privilege or protection is not so
easily waived and the prevailing view seems to extend only to
adversaries, “so only disclosing material in a way inconsistent
with keeping it from an adversary waives work product
protection.” Ibid.; accord Restatement, supra, § 91(4). Thus,
the inquiry considers whether the disclosed material reached an
adversary or whether the disclosure to the third party made it
3
Far less than a majority of state and federal courts have
affirmatively adopted the common interest rule and those that
have done so have not applied it uniformly. See Katharine
Traylor Schaffzin, An Uncertain Privilege: Why the Common
Interest Doctrine Does Not Work and How Uniformity Can Fix It,
15 B.U. Pub. Int. L.J. 49, 52-53 (2005).
26
substantially likely that the protected material would reach an
adversary. The inquiry invariably devolves to an examination of
the nature of the disclosure itself. See, e.g., In re Chevron
Corp., 633 F.3d 153, 165 (3d Cir. 2011).
In Chevron Corp., an expert retained by the plaintiffs in
environmental damages litigation supplied reports, evaluations,
and assessments to a court-appointed global damages expert to
support their claims of environmental damages caused by the
defendant. Id. at 158. The court-appointed expert utilized
some of those documents in his assessment and attached relevant
documents supplied by the plaintiffs’ expert. Id. at 159. The
plaintiffs asserted that the documents were protected by the
work-product privilege. Id. at 164. In assessing this claim,
the Court of Appeals emphasized that “the purpose behind the
work-product doctrine requires [a court] to distinguish between
disclosures to adversaries and disclosures to non-adversaries,
and it is only in cases in which the material is disclosed in a
manner inconsistent with keeping it from an adversary that the
work-product doctrine is waived.” Id. at 165 (internal
quotation and citation omitted). The Court of Appeals concluded
that the submission of the documents by the plaintiffs to the
court-appointed expert occurred in a manner inconsistent with
withholding those documents from their adversary because the
plaintiffs’ submission was designed to influence and convince
27
not only the court-appointed expert but also the defendants of
the merits of its position. Ibid.; see also MIT, supra, 129
F.3d at 687 (holding prior disclosure to defense audit agency of
same information sought by IRS subpoena forfeited work-product
protection); Westinghouse Elec. Corp. v. Republic of Phil., 951
F.2d 1414, 1428 (3d Cir. 1991) (recognizing that disclosure to
third party does not necessarily void work-product protection
unless disclosure enables access by adversary); In re Doe, 662
F.2d 1073, 1081 (4th Cir. 1981), cert. denied, 455 U.S. 1000,
102 S. Ct. 1632, 71 L. Ed. 2d 867 (1982) (contrasting disclosure
of fact or opinion work product to third parties with common
interest and free and voluntary disclosure to third party,
including adversary, demonstrating conscious disregard of
confidentiality provided by work-product doctrine).
D.
The scope or extent of common interests is the subject of
considerable debate. The positions of the parties and amici
reflect this debate. In New Jersey, it is not necessary that
every party share identical interests. LaPorta, supra, 340 N.J.
Super. at 262. It is also not necessary for actual litigation
to have commenced. Ibid. It is sufficient that litigation is
contemplated. Ibid. The common interest may arise in the
context of civil or criminal proceedings. Ibid. (citing In re
Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d
28
244, 249 (4th Cir. 1990)); SCI, supra, 226 N.J. Super. at 466.
Furthermore, the communication need not be confined to counsel.
Communications between counsel for a party and a representative
of another party with a common interest are also protected.
LaPorta, supra, 340 N.J. Super. at 262.
The Restatement, supra, § 76 comment e, addressing the
common interest rule in the context of the attorney-client
privilege, states that “the common interest . . . may be legal,
factual, or strategic in character,” and “[t]he interests of the
separately represented clients need not be entirely congruent.”
See also Restatement, supra, § 91 cmt. b. (addressing common
interest rule in context of work-product doctrine).
Outside of New Jersey, however, courts vary in their
analyses of the common interest rule, resulting in less
certainty concerning its application. Schaffzin, supra, 15 B.U.
Pub. Int. L.J. at 65. Some jurisdictions require that the
interests of the parties be completely congruent in order for a
common legal interest to exist. See SCM Corp. v. Xerox Corp.,
70 F.R.D. 508, 513 (D. Conn.) (“That . . . both parties’
interests converged does not lessen the significance of their
divergent interests. Their interests regarding antitrust
considerations were not sufficiently common to justify extending
the protection of the attorney-client privilege to their
discussion.”), appeal dismissed, 534 F.2d 1031 (2d Cir. 1976);
29
Niagara Mohawk Power Corp. v. Megan-Racine Assocs., Inc. (In re
Megan-Racine Assocs.), 189 B.R. 562, 573 (Bankr. N.D.N.Y. 1995)
(“A common legal interest exists where the parties asserting the
privilege were co-parties to litigation or reasonably believed
that they could be made a party to litigation.”). Others have
stated that it is necessary that every party share identical
interests. United States ex rel. [Redacted] v. [Redacted], 209
F.R.D. 475, 479 (D. Utah 2001) (“A community of interest exists
where different persons or entities have an identical legal
interest with respect to the subject matter of a communication
between an attorney and a client concerning legal advice.”);
Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172
(D.S.C. 1974) (“The key consideration is that the nature of the
interest be identical, not similar.”). Additionally, some
jurisdictions stress that no commonality of legal interest
exists if there is no threat of actual litigation, resting the
analysis on this aspect rather than on the uniformity of
interests. See In re Megan-Racine Assocs., supra, 189 B.R. at
573 (finding legal interest only where pending or reasonably
anticipated litigation exists).
Other jurisdictions disagree whether the common interest
doctrine can protect client-to-client communications. Compare
United States v. Gotti, 771 F. Supp. 535, 545 (E.D.N.Y. 1991)
(finding extension of application of joint defense privilege to
30
conversation among defendants in absence of attorney “is
supported neither in law nor in logic and is rejected”), with
Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965)
(“[W]here two or more persons who are subject to possible
indictment in connection with the same transactions make
confidential statements to their attorneys, these statements,
even though they are exchanged between attorneys, should be
privileged to the extent that they concern common issues and are
intended to facilitate representation in possible subsequent
proceedings.”), and In re Grand Jury Subpoena Duces Tecum Dated
Nov. 16, 1974, 406 F. Supp. 381, 388 (S.D.N.Y. 1975) (“Thus, the
Hunydee opinion -- specifically addressed to a joint conference
situation -- confirmed that the ‘exchange between attorneys,’ .
. . might equally be effected through the clients’ direct
communication as well as through the attorneys’ reciprocal
transfer of documents recording such communications.”). These
numerous differences among jurisdictions reflect the lack of
uniformity concerning the scope of the common interest doctrine.
Professor Schaffzin has suggested a uniform rule to
alleviate uncertainty. Schaffzin, supra, 15 B.U. Pub. Int. L.J.
at 86-90. She suggests that the shared common interest should
be “a legal, rather than a purely commercial interest,” id. at
72, and further advocates that a uniform common interest rule
should require “that the parties’ shared legal interest be
31
common but not necessarily identical,” id. at 73. Such a rule
would focus a court’s consideration of whether parties share a
common legal interest “on the nature of the communication and
the general purpose for which it is shared, rather than on the
relationship of the parties.” Ibid. Finally, because the
common interest rule derives from the attorney-client privilege,
it is of no matter whether the disclosure occurs in anticipation
of litigation or in the course of litigation. Id. at 76.
E.
Access to public documents may also be procured in
accordance with the common law right of access. The right is
broader than OPRA because it encompasses a more expansive class
of documents. Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J.
274, 302 (2009). Unlike OPRA, a person seeking public documents
pursuant to the common law right of access “‘must be balanced
against the State’s interest in preventing disclosure.’” Ibid.
(quoting Higg-A-Rella, Inc. v. Cnty. of Essex, 141 N.J. 35, 46
(1995)). In other words, the party requesting documents must
explain why he seeks access to the requested documents.
In order to determine whether the common law right of
access applies to a particular set of records, a court must
follow a three-step test. First, it must determine whether the
documents in question are “public records.” Atl. City
Convention Ctr. Auth. v. S. Jersey Publ’g Co., 135 N.J. 53, 59
32
(1994). Second, the party seeking disclosure must show that he
has an interest in the public record. Educ. Law Ctr., supra,
198 N.J. at 302. More specifically, if the plaintiff is seeking
“disclosure of privileged records,” such as those protected by
the work-product doctrine, he must show “particularized need.”
Wilson v. Brown, 404 N.J. Super. 557, 583 (App. Div.) (citing
McClain v. Coll. Hosp., 99 N.J. 346, 351 (1985)), certif.
denied, 198 N.J. 473 (2009). In McClain, supra, this Court set
forth a three-part test for determining whether a party has
articulated a particularized need: “1) the extent to which the
information may be available from other sources, 2) the degree
of harm the litigant will suffer from its unavailability, and 3)
the possible prejudice to the agency’s investigation.” 99 N.J.
at 351. Third, once the plaintiff’s interest in the public
record has been established, the burden shifts to the public
entity to establish that its need for non-disclosure outweighs
the plaintiff’s need for disclosure. Educ. Law Ctr., supra, 198
N.J. at 303.
IV.
A.
As related in this opinion, there is considerable debate
among the various jurisdictions, state and federal, regarding
whether the common interest rule should be adopted, and, if so,
on what terms. New Jersey recognizes the common interest rule
33
but some counsel urge that our application of the rule has
either strayed from its roots in the attorney-client privilege
or is too narrowly restricted to disclosures made during
litigation or in anticipation of litigation. Others contend the
common interest rule articulated in LaPorta is too broad. All
agree, however, that the common interest rule does not create a
new privilege. Rather, it permits disclosure of privileged
material, attorney-client confidential communications or work
product, to third parties without waiving any privilege as long
as the applicable features of the common interest rule in the
jurisdiction are satisfied.
Those that disagree with the LaPorta rule urge that the
Court take this opportunity to modify the current rule. We
decline to do so. The common interest rule is designed to
permit the free flow of information between or among counsel who
represent clients with a commonality of purpose. It offers all
parties to the exchange the real possibility for better
representation by making more information available to craft a
position and inform decision-making in anticipation of or in the
course of litigation. In re Grand Jury Subpoenas, supra, 902
F.2d at 249. We acknowledge, however, that how far beyond “the
magic circle” privileged material may be shared depends on
whether the disclosed material is protected by the attorney-
client privilege or the work-product doctrine. Thus, as
34
recognized in the Restatement, sharing of privileged information
of several, even many, commonly interested clients will remain
inviolate as long as a stranger does not intrude. Restatement,
supra, § 76(1) cmt. c. In other words, the actions of the
commonly interested clients and their attorneys must reflect the
privileged status of the communications, including taking
measures to prevent disclosure to an adversary. Compare MIT,
supra, 129 F.3d at 687 (finding that disclosure of billing
statements and corporate minutes containing privileged
communications to audit agency constituted disclosure to
potential adversary), and Westinghouse, supra, 951 F.2d at 1429
(holding that target of investigations which discloses work
product to investigatory agencies waived work-product protection
against all adversaries), with United States v. Am. Tel. & Tel.
Co., 642 F.2d 1285, 1300 (D.C. Cir. 1980) (holding party
assisting Department of Justice investigation of another not an
adversary of agency).
We recognize, however, that any privilege, including the
attorney-client privilege or the protection afforded to work
product, restricts the disclosure of information, even highly
relevant information, and may intrude on the fact-finding
function of litigation. Kociolek, supra, 23 N.J. at 414-15.
Yet, those concerns do not warrant adoption of the most
conservative formulations of the common interest rule, such as
35
requiring that the interests of the parties be completely
congruent or identical, SCM Corp., supra, 70 F.R.D. at 513, or
requiring a threat of actual litigation, see In re Megan-Racine
Assocs., supra, 189 B.R. at 573, or requiring that the common
interest be legal rather than purely commercial, see Schaffzin,
supra, 15 B.U. Pub. Int. L.J. at 72. Rather, we conclude that
the rule recognized in LaPorta strikes an acceptable balance of
these competing interests.
We, therefore, expressly adopt the common interest rule as
articulated in LaPorta. The common interest exception to waiver
of confidential attorney-client communications or work product
due to disclosure to third parties applies to communications
between attorneys for different parties if the disclosure is
made due to actual or anticipated litigation for the purpose of
furthering a common interest, and the disclosure is made in a
manner to preserve the confidentiality of the disclosed material
and to prevent disclosure to adverse parties. LaPorta, supra,
340 N.J. Super. at 262. The disclosure may occur prior to the
commencement of litigation. Ibid. Communications between
counsel for one party and a representative of another party with
a common interest will preserve the privileged nature of the
disclosed information. Ibid. Moreover, the common interest
need not be identical; a common purpose will suffice. Ibid.
36
Common purpose extends to sharing of trial preparation
efforts between attorneys against a common adversary. The
attorneys need not be involved in the same litigated matter or
anticipated matter. Am. Tel. & Tel. Co., supra, 642 F.2d at
1299. Moreover, the rule should be broad enough to encompass
the situation in which certain disclosures of privileged
material are made to another attorney who shares a common
purpose, for the limited purpose of considering whether he and
his client should participate in a common interest arrangement.
Applying these principles to this appeal, we conclude that
the interests of Longport and Sufrin’s clients, a former
municipal official and municipal residents, were not identical
but clearly shared a common purpose. Sufrin was attempting to
defend a civil action commenced by O’Boyle arising out of one
client’s official position and others’ participation in civic
affairs. Longport had defended many civil actions filed against
it by O’Boyle and anticipated further litigation from O’Boyle.
Both Sufrin and Longport had a common purpose to repel further
legal challenges from a citizen who did not agree with the
manner in which elected and appointed officials discharged their
public duties. It is of no consequence that the private
attorney and the municipal attorney did not jointly defend the
pending litigation. The focus must be whether the private
attorney and the municipal attorney shared a common purpose at
37
the time the private attorney shared his work product with the
municipal attorney.
Furthermore, the private attorney’s work product was
disclosed in a manner calculated to preserve its
confidentiality. There is no evidence that the municipal
attorney shared the material with anyone else, including
O’Boyle. Indeed, once the municipal attorney declined to enter
a joint or common defense strategy with Sufrin, he returned the
privileged material, thereby minimizing even an inadvertent
disclosure to O’Boyle. In sum, the joint strategy memorandum,
the CDs containing documents prepared or obtained by Sufrin, and
the associated correspondence were attorney work product.
Disclosure of this material to the municipal attorney did not
destroy the protected character of this material because at the
time of the disclosure, Sufrin and the municipal attorney shared
a common purpose to defend their public and private clients from
pending and anticipated litigation filed by O’Boyle. Therefore,
Longport and the Borough Clerk properly withheld the contested
six categories of documents.
B.
We need not determine whether the material provided to the
municipal attorney became a public record in accordance with the
common law upon receipt from the private attorney. The common
law right of access recognizes privileges, such as the attorney-
38
client privilege, although the privilege may be overcome by a
showing of particularized need. Here, O’Boyle articulated the
interest he had in the material supplied by Sufrin to the
municipal attorney but failed to express a particularized need
for the documents. Having failed to demonstrate a
particularized need for the privileged material supplied to the
municipal attorney, O’Boyle failed to satisfy the common law
standard for access to those documents.
V.
In conclusion, we expressly adopt the common interest rule
as previously articulated in LaPorta, supra, 340 N.J. Super. at
254, 262-63. We also hold that Sufrin, who represented a former
municipal official and private residents in litigation filed by
O’Boyle, shared a common purpose with Longport at the time he
disclosed work product to the municipal attorney. Therefore,
the joint strategy memorandum, and the CDs containing documents
obtained and produced by the private attorney were not
government records subject to production in response to an OPRA
request by O’Boyle. Finally, O’Boyle failed to articulate a
particularized need as required by the common law right of
access to obtain the work product of the private attorney.
VI.
The judgment of the Appellate Division is, therefore,
affirmed.
39
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and
JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s
(temporarily assigned) opinion. JUSTICE PATTERSON did not
participate.
40
SUPREME COURT OF NEW JERSEY
NO. A-16 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
MARTIN E. O’BOYLE,
Plaintiff-Appellant,
v.
BOROUGH OF LONGPORT, and
THOMAS HILTNER in his
capacity as Borough of
Longport Clerk and Custodian
of Records,
Defendants-Respondents.
DECIDED July 21, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON -------------------- --------------------
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 5