“Common Interest” Doctrine Protects Documents From Disclosure Under OPRA

O’Boyle v. Borough of Longport, 218 N.J. 168 (2014).  The “common interest” doctrine permits multiple parties, who are represented by different counsel, to share information without destroying attorney-client privilege.  The question in this case was whether the common interest rule protects otherwise privileged documents in the context of the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), and the common law right to obtain access to governmental records.

Plaintiff filed lawsuits against three individuals, one of whom was a former member of the Borough’s planning and zoning board.  The attorney for those individuals suggested to the Borough Attorney that they coordinate strategy in defendning those cases and other cases anticipated to be filed by plaintiff, a frequent litigant.  The private attorney prepared a joint strategy memo. collected documents, and forwarded all those materials to the Borough Attorney.  The Borough thereafter decided not to enter into a joint defense arrangement, and the Borough Attorney returned all the materials to the private attorney.

Plaintiff sought to obtain the strategy memo and the documents under OPRA and the common law right of access.  The Law Division dismissed the case, holding that the materials were not government records covered by OPRA or the common law right of access.  In an opinion discussed here, the Appellate Division, in an opinion by Judge Alvarez, assumed for purposes of argument that the documents were government records, but held that the common interest rule applied and protected them from disclosure.  The Supreme Court granted review, and affirmed in a unanimous opinion by Judge Cuff.

Judge Cuff’s opinion contains a comprehensive discussion of the attorney-client privilege, the work product doctrine, and the common interest rule.  Ultimately, the Court adopted the principles of LaPorta v. Gloucester Cty. Freeholder Bd., 340 N.J. Super. 254 (App. Div. 2001), an opinion by Judge Keefe.  That decision held that the common interest doctrine applies where different parties have a “common purpose,” even if their interests are not identical.  The Court rejected arguments that sought to alter the scope of the LaPorta rule, holding instead that LaPorta “strikes an acceptable balance of [the] competing interests” of disclosure on the one hand and the protection of confidential communications on the other hand.

On the facts of this case, Judge Cuff determined that the two attorneys had a common purpose when the materials were sent to, and later returned by, the Borough Attorney.  The private parties had been sued by plaintiff, and the Borough had been sued by plaintiff before and anticipated additional litigation by him.  The fact that there ultimately was no joint defense was immaterial.  Accordingly, the documents were not government records subject to OPRA.  As to the common law right of access, plaintiff had not shown “particularized need” to obtain the private attorney’s work product, so plaintiff’s common law demand failed as well.