UNDERWOOD PROPERTIES, LLC v. CITY OF HACKENSACK (L-7980-19, BERGEN COUNTY AND STATEWIDE)
A-0044-20
| N.J. Super. Ct. App. Div. | Jan 24, 2022Background
- Underwood Properties (plaintiff) — through its attorney Richard Malagiere — submitted OPRA requests for emails and texts involving Hackensack officials and the deputy mayor; the City custodian Deborah Karlsson denied or limited several requests as overbroad and withheld documents as privileged.
- Karlsson produced some records and a Vaughn index; she refused to review search terms that returned more than 400 hits per term as too broad.
- Plaintiff filed suit seeking compelled production and in camera review of withheld documents; the trial judge reviewed records and initially ordered limited production, then on reconsideration classified most withheld documents as privileged (deliberative process and attorney-client).
- Plaintiff sought $14,560.20 in counsel fees; the judge performed a lodestar analysis, reduced hours/rates for some entries, and awarded a reduced fee ($3,750) attributable to the successful portion of the suit that produced 831 additional documents.
- Defendants appealed the fee award and challenged standing (because counsel, not the client, submitted the OPRA requests); plaintiff appealed the denial of one email claimed not to be privileged.
- The Appellate Division affirmed: plaintiff had standing; the challenged email and other withheld records were privileged; the trial court did not abuse its discretion in awarding and calculating reduced counsel fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under OPRA | Request filed by plaintiff's counsel on plaintiff's behalf; plaintiff has standing to challenge denial | Counsel — not client — submitted requests; plaintiff lacks standing | Attorney could act with client consent; plaintiff had standing; court declines narrow reading of statute |
| Attorney‑client / common‑interest privilege over email that copied financial advisor | Privilege waived by copying third party (financial advisor) | Email sought legal advice and included financial advisor in official capacity; common‑interest exception applies | Privilege applies: communication sought legal advice and included advisor in official role; not intended to be public |
| Deliberative‑process privilege and scope of requests (400‑hit cap) | Many withheld documents should be produced; cap and withholding were arbitrary | Cap justified as limiting overly broad searches; withheld records protected by privilege | Judge found 9 of 10 documents protected by deliberative process and one by attorney‑client privilege; 400‑hit cap was arbitrary and Court ordered production of other responsive records earlier |
| Entitlement to and calculation of counsel fees under OPRA | Plaintiff obtained additional documents because of litigation and is entitled to fees; judge erred by reducing lodestar based partly on produced/withheld document counts | Plaintiff did not fully prevail; relief not caused by litigation; no fees warranted | Plaintiff was a prevailing party under catalyst theory; judge reasonably calculated/reduced lodestar and award; no abuse of discretion |
Key Cases Cited
- Mason v. City of Hoboken, 196 N.J. 51 (N.J. 2008) (standards for awarding fees under OPRA; causal nexus and legal basis for relief)
- New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137 (N.J. 2005) (qualitative fee analysis in OPRA cases; caution about relying solely on percentages)
- O'Boyle v. Borough of Longport, 218 N.J. 168 (N.J. 2014) (attorney‑client privilege scope and confidentiality requirements)
- Rendine v. Pantzer, 141 N.J. 292 (N.J. 1995) (lodestar method and fee reasonableness analysis)
- Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372 (N.J. 2009) (deference to trial court on attorney fee awards and lodestar computation)
- Walker v. Guiffre, 209 N.J. 124 (N.J. 2012) (reducing lodestar for limited success)
- Teeters v. Div. of Youth & Fam. Servs., 387 N.J. Super. 423 (App. Div. 2006) (definition of prevailing party and catalyst theory)
- Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 416 N.J. Super. 565 (App. Div. 2010) (change in custodian conduct as a basis for fee awards)