42 A.3d 910
N.J. Super. Ct. App. Div.2012Background
- O'Boyle sought OPRA production of letters and CDs related to prior litigation strategy.
- Trial court dismissed, finding communications privileged and CDs not public records.
- Items consisted of litigation materials exchanged between Longport's outside counsel and private counsel for a former board member and others sued by plaintiff.
- Court held materials were protected by attorney-work-product privilege and not subject to OPRA or common-law access.
- On appeal, plaintiff argued no common-interest shield; court affirmed denial and privilege protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the letters and CDs are protected work product under OPRA. | O'Boyle contends materials are subject to disclosure under OPRA. | Longport argues materials are protected work product due to litigation preparation and shared common interest. | Yes; materials are protected work product and not subject to disclosure. |
| Whether the common-interest doctrine applies to disclose communications among counsel for different clients. | Plaintiff asserts no common interest shielding disclosure. | Defendants show shared common defense interests with Sufrin's clients. | Common interest doctrine applies, shielding disclosure. |
| Whether the CDs/letters are public records under the common law right of access. | CDs/letters should be producible as public records. | Not public records; created for litigation, private function; no public officer created them. | Not public records; privilege applies; no disclosure. |
Key Cases Cited
- Times of Trenton Publ’g Corp. v. Lafayette Yard Dev. Corp., 183 N.J. 519 (N.J. 2005) (purpose of OPRA to maximize public knowledge, with confidentiality carveouts)
- Mason v. Hoboken, 196 N.J. 51 (N.J. 2008) (public-record definition and access standards)
- Keddie v. Rutgers, 148 N.J. 36 (N.J. 1997) (broad public-record definition: created by public officers or at their behest)
- Tractenberg v. Twp. of West Orange, 416 N.J. Super. 354 (App.Div. 2010) (public-law privilege application in litigation context)
- Paff v. Dir. of Attorney Ethics, 399 N.J. Super. 632 (Law Div. 2007) (particularized need standard for disclosure of privileged records)