211 A.3d 729
N.J. Super. Ct. App. Div.2019Background
- On Oct. 9, 2015, Paladino fell on defendant Auletto Enterprises’ staircase at a catered event; defendant reported the incident and its insurer retained an investigator.
- The insurer’s investigator photographed the scene Oct. 26, 2015, and recorded statements from three of defendant’s employees; plaintiff’s counsel later inspected and photographed the stairs and received surveillance video and the incident report.
- Plaintiff sued in June 2017; defendant disclosed that the insurer’s investigator had photographs, a diagram, and recorded employee statements but refused to produce them on work‑product grounds.
- Plaintiff moved to compel production; the trial court ordered production, reasoning materials taken pre‑complaint were not in anticipation of litigation (relying on Pfender).
- Defendant appealed; the Appellate Division reversed the trial court’s categorical approach and remanded for a fact‑specific Rule 4:10‑2(c) analysis on whether materials were prepared in anticipation of litigation and, if so, whether plaintiff met the substantial‑need/undue‑hardship standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether materials gathered by insurer/investigator before a complaint are protected as work product | Paladino argued the materials were not protected because they were gathered pre‑litigation and thus not in anticipation of litigation | Auletto/insurer argued the materials were prepared in anticipation of litigation by the insurer’s representative and are protected under Rule 4:10‑2(c) | Court held there is no bright‑line rule; pre‑litigation materials can be work product if prepared in anticipation of litigation — require fact‑specific inquiry under Rule 4:10‑2(c) |
| If materials are work product, whether plaintiff may obtain them | Paladino argued substantial need exists because she lacks equivalents (claimed inconsistent statements and unique photos) | Auletto argued plaintiff has access to equivalent evidence (surveillance video, plaintiff’s counsel’s photos, and can depose witnesses) | Court held that if materials are work product plaintiff must show (1) substantial need and (2) inability without undue hardship to obtain substantial equivalent; remanded for this analysis |
| Whether trial court erred by applying Pfender as a per se rule excluding pre‑litigation insurer materials | Paladino relied on Pfender to justify disclosure | Auletto argued Pfender does not create a per se rule and must be read with Medford and Rule 4:10‑2(c) | Court rejected a per se rule from Pfender, reconciled Pfender with Medford, and required case‑by‑case analysis; reversed order compelling production and remanded |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (Sup. Ct.) (establishes federal work‑product protection for materials prepared in anticipation of litigation)
- O'Boyle v. Borough of Longport, 218 N.J. 168 (N.J.) (discusses New Jersey recognition and scope of work‑product doctrine)
- Medford v. Duggan, 323 N.J. Super. 127 (App. Div.) (applies fact‑specific test for insurer‑obtained statements and analyzes substantial‑need inquiry)
- Pfender v. Torres, 336 N.J. Super. 379 (App. Div.) (addressed discoverability of pre‑litigation insurer statements; interpreted here as not creating a per se rule)
- Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64 (App. Div.) (treats Medford and Pfender as applying the same standard for insurer‑prepared materials)
- Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84 (App. Div.) (explains prior statements by a testifying witness generally must be produced for impeachment)
- Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144 (App. Div.) (distinguishes routine business statements from protected work product)
- Payton v. N.J. Tpk. Auth., 148 N.J. 524 (N.J.) (discusses limits on work‑product protection for routine business materials)