NOT FOR PUBLICATION WITHOUT THE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-2912-16T2
PASQUALE FALCETTI, JR.,
Plaintiff-Respondent,
v.
WATERFRONT COMMISSION OF
NEW YORK HARBOR,
Defendant-Appellant.
_______________________________
Argued June 6, 2017 – Decided July 3, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-4916-14.
Melissa A. Provost argued the cause for
appellant (Drinker Biddle & Reath, LLP,
attorneys; Ms. Provost, on the briefs).
George T. Daggett argued the cause for
respondent.
PER CURIAM
On leave granted, defendant Waterfront Commission of New York
Harbor appeals a February 6, 2017 order compelling defendant to
produce 194 documents in response to plaintiff Pasquale Falcetti,
Jr.'s discovery demands. We vacate the court's order and remand
for further proceedings in accordance with this opinion.
Plaintiff's complaint alleges that defendant wrongfully
delayed its investigation concerning his eligibility to work as a
longshoreman and thereby deprived him of his right to become
employed in that capacity. During discovery, plaintiff requested
defendant's investigation records. Defendant produced 606 pages
of documents but objected to producing an additional 194 documents
it claimed were privileged. Defendant provided a privilege log
identifying the documents and claiming each was protected from
disclosure under the law enforcement investigatory privilege.
Defendant claimed thirty-one of the documents were also protected
from disclosure under the attorney work product doctrine.
Plaintiff filed a motion to compel production of the
documents. The court granted the motion in an order stating only
that "[d]efendant[] . . . shall provide to [p]laintiff the
documents requested pursuant to discovery." The court denied
defendant's subsequent motion for reconsideration in an order
finding defendant did not satisfy its "burden to show the material
is privileged" and that plaintiff demonstrated "a compelling need
for [the] material."
We granted defendant's motion for leave to appeal the court's
orders. In our opinion we discussed the elements of the law
2 A-2912-16T2
enforcement investigatory privilege and work product doctrine, and
the balancing tests courts must perform to determine if documents
falling within the privilege or doctrine should otherwise be
produced. Falcetti v. Waterfront Comm'n of N.Y. Harbor, No. A-
1082-15 (App. Div. Sept. 23, 2016) (slip op. at 9-16). We also
explained that where a court conducts an in camera review of
documents identified in a privilege log, "it must examine each
document individually, and explain as to each document . . . why
it has so ruled." Id. at 16 (quoting Seacoast Builders Corp. v.
Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003)).
We found the court's order directing the production of the
documents "[gave] us little to no indication that it considered
the privilege log or the documents and conducted the requisite
balancing," and noted the court's order was unaccompanied by the
findings of fact and conclusions of law required under Rule 1:6-
2(f). Id. at 17. We also concluded the order denying defendant's
motion for reconsideration suffered from the same infirmity; it
"failed to explain how the court reached [its] conclusions." Id.
at 18.
We further determined the court's finding that plaintiff
demonstrated a compelling need for the documents "appear[ed]
unsupported by the record." Ibid. The court had not reviewed the
documents in camera, and the three certifications submitted on
3 A-2912-16T2
defendant's behalf explained the bases for its alleged privileges
under New Jersey law and why disclosure would be harmful. We
therefore found the record did not support the court's conclusion
that defendant failed to make a prima facie showing of privilege,
ibid., and concluded that because plaintiff's counsel's opposing
certification only mentioned four of the privilege log documents,
the record did not support the court's finding that plaintiff
demonstrated a compelling need for the documents. Id. at 18-19 .
We remanded the matter for a consideration of the
certifications and a review of the documents. Id. at 19. We
directed that the court issue "a statement of reasons explaining
why each document or category of documents should or should not
be disclosed." Ibid.
On remand, the trial court permitted the parties to provide
additional briefs. Plaintiff submitted letter briefs, but did not
submit any additional certifications supporting his claim that
there was a compelling need for the disputed documents. Defendant
submitted additional briefs and relied on the certifications
previously submitted in support of its assertions of privilege and
harm. The court conducted an in camera review of the documents.
In a February 1, 2017 order, the court again granted
plaintiff's motion to compel and ordered the production of the
privilege log documents. The court set forth its findings on
4 A-2912-16T2
defendant's privilege claims in a chart which grouped the 194
documents into seven categories: "[p]ublic records/news articles,"
"[s]ubpoenas," "[e]mails regarding subpoenas," "[e]mails regarding
investigation," "[l]egal documents," "[n]otes," and "[r]eports of
Commission investigation." The chart identified the exhibit
numbers for the documents included in each category and the court's
ruling on defendant's privilege claims for each category.
The listed rulings for the "[p]ublic records/news articles"
and "legal documents" categories state only that the documents are
"public records" and therefore not privileged. For the remaining
categories, the chart states either that the documents are "not
privileged" or briefly describes the documents within the category
and states they are "not privileged."
In addition to the chart, the court provided a conclusory
statement that "[n]one of the documents are protected by the law
enforcement investigatory privilege" and that the thirty-one
documents defendant claimed were protected by the attorney-work
product doctrine were "not protected." The court also offered that
"the vast majority" of the documents relate to "status and/or
scheduling or are public records" and, for that reason, were not
privileged.
The court then referred to the "few remaining documents" –
without identifying them – that defendant claimed were protected
5 A-2912-16T2
by the law enforcement investigatory privilege1 and explained it
conducted the balancing test required in Nero v. Hyland, 76 N.J.
213 (1978), and Piniero v. N.J. Div. of State Police, 404 N.J.
Super. 194 (App. Div. 2008). The court reasoned that those "few
remaining" but unidentified documents did not contain information
revealing law enforcement techniques, confidential sources or
witnesses, and their disclosure would not interfere with future
investigations. The court concluded that the "scale overwhelmingly
weigh[ed] in favor of disclosure to plaintiff," for the
unidentified documents, but based its conclusion only on its
finding that "the documents may be relevant to plaintiff's theory
of delay."
The court further stated that its findings concerning
defendant's claim the documents were protected under the attorney
work product doctrine was "similar" to its findings on the
investigatory privilege. The court stated plaintiff demonstrated
a "substantial need" for the production of the thirty-one documents
defendant claimed were protected under the attorney work product
1
As noted, all of the 194 documents at issue were listed in the
court's chart and addressed in the court's rulings. Defendant
claimed that all of the documents were protected under the law
enforcement investigatory privilege. Based on our review of the
record, we are unable to determine which of the 194 documents
comprise those the court referred to as the "few remaining
documents."
6 A-2912-16T2
doctrine. The court also explained that the documents did not
reveal any protected mental impressions, conclusions, legal
theories, or opinions of counsel concerning litigation. The court
entered a February 1, 2017 order granting plaintiff's motion to
compel the production of the privilege log documents.2 This appeal
followed.
In our initial decision in this matter, we expressly directed
that if on remand the court conducted an in camera inspection of
the documents,3 it was required to issue a statement of reasons
explaining why each document or category of documents should or
should not be disclosed. Falcetti, supra, slip op. at 19; see also
Payton v. N.J. Tpk. Auth., 148 N.J. 524, 550 (1997); Rosenberg v.
State Dep't of Law & Pub. Safety, Div. of Crim. Justice, 396 N.J.
Super. 565, 580-81 (App. Div. 2007); Seacoast, supra, 358 N.J.
2
The record reflects that on February 28, 2017, defendant provided
plaintiff with 996 pages of materials, which comprised 55 of the
194 documents listed on the court's chart. Some of the documents
were provided with redactions, which were explained in a February
28, 2017 letter from defendant's counsel to plaintiff's counsel.
Defendant supplied the documents without prejudice to its
assertion of privilege for the remaining documents in the privilege
log. The provision of the documents subsequent to the court's
February 1, 2017 order under appeal here does not affect our
decision, and we note that plaintiff is free to challenge the
sufficiency of the production and redactions on remand.
3
In the initial appeal, we were informed there were 196 documents
at issue. Falcetti, supra, slip op. at 17. On remand, the court
addressed defendant's privilege claims as to only 194 documents.
7 A-2912-16T2
Super. at 542. The statement of reasons was not only required by
our remand decision, it was otherwise necessary because a failure
to provide findings of fact and conclusions of law "constitutes a
disservice to the litigants, the attorneys and the appellate
court." Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141
N.J. Super. 1, 4 (App. Div. 1976); see Gnall v. Gnall, 222 N.J.
414, 428 (2015).
Based on our review of the record, we are constrained to
conclude that the court did not make the required findings of fact
and conclusions of law supporting its decision.4 In the first
instance, the court failed to make sufficient findings supporting
its rulings, as reflected on the chart, that the documents in the
"[p]ublic records/news articles," "[e]mails regarding subpoenas,"
"[e]mails regarding investigation," "[n]otes," and "[r]eports of
Commission investigation," are not privileged.5 For the "[n]otes"
4
We reach this conclusion without the benefit of the documents,
which appellant should have provided to the court in a confidential
appendix. However, it is not for this court, in the first instance,
to review each document, characterize it, ascertain whether it is
subject to privilege, and then determine whether that privilege
should yield to plaintiff's need for discovery. Our role is to
deferentially review, for an abuse of discretion, the trial court's
fulfillment of that task, including setting forth in sufficient
detail the basis for its decision.
5
It appears the documents in the other categories, "[p]ublic
records/news articles" and "[l]egal documents," were produced by
defendant on February 28, 2017, and thus are no longer at issue.
8 A-2912-16T2
and "[r]eports of Commission investigation" categories, the
rulings on the chart state only that the documents are "[n]ot
privileged." For the two email categories, the chart states only
that the documents are not privileged because they contain status
requests and scheduling issues. Similarly, the ruling on the
documents in the "[n]otes" category states that the documents are
not privileged because they pertain to scheduling and status, and
also because they pertain to "plaintiff's possible relationship
to organized crime."
The court's rulings were conclusory, unsupported by
sufficient findings of fact, and untethered to any analysis of the
applicable law that we discussed in detail in our opinion remanding
the matter. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("the
trial court must state clearly its factual findings and correlate
them with the relevant legal conclusions"). A determination of the
applicability of the law enforcement investigatory privilege
requires a consideration of many factors and weighing of law
enforcement's need for confidentiality and the party's need for
the disputed records. Nero, 76 N.J. at 223-25; Falcetti, supra,
slip op. at 14-15; Piniero, supra, 404 N.J. Super. at 205-07.
Simple characterizations that a vast number of documents relate
to scheduling or status requests do not represent the detailed
9 A-2912-16T2
findings required by our directive on remand or by law. See Payton,
supra, 148 N.J. at 550; Seacost, supra, 358 N.J. Super. at 542.
In addition, although the court determined that none of the
documents were privileged under the law enforcement investigatory
privilege, it nonetheless conducted a balancing test for a "few
remaining" unidentified documents to determine if plaintiff's need
for the documents outweighed defendant's need for confidentiality.
The court made findings that the unidentified documents did not
contain information protected by the investigatory privilege and
concluded plaintiff's need for the documents overwhelmingly
outweighed defendant's need for confidentiality.
Again, the findings are inadequate. As noted, it is not
possible to discern the documents assessed in the court's balancing
test.6 Moreover, in its attempt to balance the interests of the
parties, the court makes insufficient findings grounded in the
evidentiary record concerning defendant's need for confidentiality
or plaintiff's need for the documents. The court also failed to
address our observation in the remand decision that the
certification submitted in support of plaintiff's motion to compel
mentioned only four of the documents in the privilege log and
6
We note that the documents might include those defendant produced
on February 28, 2017.
10 A-2912-16T2
therefore "provides no apparent basis" to conclude plaintiff made
a compelling need for defendant's entire investigatory file.
Falcetti, supra, slip op. at 19. Plaintiff submitted no additional
evidence on remand in support of its request for the documents
and, for the reasons we explained in Falcetti, ibid., the court's
finding plaintiff demonstrated an overwhelming need for the
documents once again appears unsupported by the record.7
We offer no opinion as to whether any of the documents are
privileged or come within the protection of the attorney work
product doctrine. That determination must be made by the trial
court in the first instance in accordance with the guidance we
provided in Falcetti. Ibid. The court failed to make the requisite
findings of fact and conclusions of law supporting its
determinations and we remand again for the court to do so.
We vacate the court's February 1, 2017 order and remand for
further proceedings consistent with this opinion. We do not retain
jurisdiction.
7
The court's conclusion that plaintiff demonstrated a substantial
need for the thirty-one documents defendant also claimed were
protected under the attorney work product doctrine suffers from
the same absence of support in the record. Moreover, the court did
not make any findings of fact based on the evidentiary record and
therefore did not apply the facts to the applicable law in a manner
supporting its conclusion.
11 A-2912-16T2