Drinker Biddle v. Dept. of Law
24 A.3d 829
| N.J. Super. Ct. App. Div. | 2011Background
- Drinker submitted an OPRA request for unfiled deposition transcripts from ExxonMobil litigation.
- NJDEP sued Exxon for pollution at the Bayway Refinery; transcripts were taken by private counsel but not filed with the court.
- Division denied OPRA access, citing N.J.S.A. 47:1A-9b confidentiality for unfiled discovery.
- Trial judge dismissed both OPRA and common-law access claims, relying on pre-OPRA case law recognizing confidentiality of unfiled discovery.
- Drinker appealed, contending transcripts are government records subject to OPRA and that no exemption for unfiled discovery applies; sought common-law access.
- Appellate Division held 9b precludes disclosure of unfiled discovery, but remanded to apply the proper common-law balancing test for access.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OPRA applicability to unfiled discovery | Drinker contends no OPRA exemption for unfiled discovery. | Division argues 9b preserves confidentiality of unfiled discovery. | 9b exempts unfiled discovery from access. |
| Common-law right of access | Drinker has a public interest in transcripts; common-law access extends beyond OPRA. | Division disputes public/public-interest basis; confidentiality still applies. | Common-law right exists and requires balancing; remanded for weighing factors. |
| Remand for balancing | Court should consider Drinker's public interest and relevance to public vindication. | Confidentiality should prevail absent compelling public-interest factors. | Remand for proper Loigman balancing test. |
Key Cases Cited
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (S. Ct. 1984) (pretrial materials publicly confidential; discovery largely inaccessible)
- Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157 (3d Cir. 1993) (discovery materials generally not publicly accessible)
- In re Alexander Grant & Co. Litigation, 820 F.2d 352 (11th Cir. 1987) (common-law right of access does not extend to unfiled discovery)
- Keddie v. Rutgers, The State Univ., 148 N.J. 36 (1997) (standing to obtain records requires interest; common-law access balancing)
- Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356 (1995) (confidentiality of unfiled materials in discovery recognized)
- Gannett New Jersey Partners v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005) (pre-OPRA case law recognizing confidentiality of certain records)
- Loigman v. Kimmelman, 102 N.J. 98 (1986) (Loigman factors for balancing public records disclosure)
- S. N.J. Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56 (1995) (three-factor/common-law balancing framework for access)
- Home News & Tribune v. State, Dep't of Health, 144 N.J. 446 (1996) (common-law/public interest balancing; standing to access)
- Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274 (2009) (three-part test for public records and balancing factors)