Martin O'boyle v. Borough of Longport, 218 N.J. 168

Background

Martin O’Boyle, a Longport resident, sued and repeatedly requested public records relating to litigation and grievances against Borough officials.
Private attorney David Sufrin (representing a former board member and residents) prepared a confidential joint-defense strategy memorandum and CDs of documents and sent them to Longport’s municipal attorney proposing coordinated defense; the municipal attorney later returned the materials.
O’Boyle submitted OPRA and common-law access requests covering those exchanged materials; Longport withheld six documents, asserting privilege (attorney work product / attorney-client).
Trial court dismissed O’Boyle’s complaint and sealed the records; the Appellate Division assumed the materials were public records but held they were protected work product and preserved under the common interest rule.
The New Jersey Supreme Court granted review, adopted the LaPorta formulation of the common interest rule, applied it to the facts, and affirmed the Appellate Division — also finding O’Boyle failed to show the particularized need required under the common-law access standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does OPRA or the common-law right of access require disclosure of materials Sufrin shared with the municipal attorney?	O’Boyle: materials received by municipal attorney are government records and must be produced.	Longport: materials are privileged work product/attorney-client and not producible.	Held: Privilege applied; materials withheld. OPRA/common-law access did not compel disclosure.
Did disclosure to the municipal attorney waive work-product or attorney-client protections?	O’Boyle: Sufrin’s voluntary sharing waived privilege, especially given risk of wider dissemination.	Longport: disclosure was made to an attorney with a common purpose and confidentiality was preserved; no waiver.	Held: No waiver under the common interest rule — disclosure was in anticipation of litigation, for a common purpose, and made to preserve confidentiality.
What is the applicable standard for the common interest rule in New Jersey?	O’Boyle: urges a narrower rule limiting common interest to strictly identical legal interests and closely related transactions.	Longport & amici: support LaPorta’s broader rule allowing shared purpose, contemplated litigation, and confidentiality measures.	Held: Court adopts LaPorta: disclosure among counsel preserves privilege if made due to actual/anticipated litigation, to further a common interest, and in a confidentiality-preserving manner; common purpose, not identity, suffices.
Could O’Boyle overcome privilege under the common-law right of access by showing particularized need?	O’Boyle: asserted general interest in oversight of municipal conduct and need for materials.	Longport: O’Boyle failed to articulate the McClain/McClain-derived particularized need required for privileged material.	Held: O’Boyle failed to demonstrate a particularized need; common-law access did not overcome privilege.

Key Cases Cited

In re State Comm’n of Investigation Subpoena No. 5441, 226 N.J. Super. 461 (App. Div. 1988) (recognized common-interest protection for privileged communications shared among interrelated entities)
LaPorta v. Gloucester County Bd. of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001) (articulated three-part test for common interest rule applied to work product)
Sussex Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531 (2012) (confirmed that work-product doctrine can shield documents from OPRA)
Hickman v. Taylor, 329 U.S. 495 (1947) (origin of the work-product doctrine and rationale protecting counsel’s preparation)
Rawlings v. Police Dep’t of Jersey City, 133 N.J. 182 (1993) (third-party disclosure does not waive attorney-client privilege when disclosure is necessary to advance representation)
K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011) (attorney-client privilege can shield otherwise public records under OPRA)