Judge Gilson Clarifies the Work Product Privilege

Paladino v. Auletta Enterprises, Inc., 459 N.J. Super. 365 (App. Div. 2019). The work product privilege, or “work product doctrine,” as it is also sometimes labeled, was first recognized by the Supreme Court of the United States in 1947, and by New Jersey in 1948. Judge Gilson’s opinion in this appeal contains a detailed history of the work product privilege, which is now embodied in Rule 4:10-2(c).

The specific issue on this slip and fall appeal, however, was whether work performed by an investigator for the company that insured the catering venue at which plaintiff fell was outside the work product privilege because the investigator’s efforts predated the suit that plaintiff ultimately filed. The Law Division rejected application of work product because, as Judge Gilson put it, “statements given to investigators hired by an insurer before the commencement of litigation were not protected.” On leave to appeal, the Appellate Division reversed.

Defendant asserted that there was a conflict between two Appellate Division cases, Pfender v. Torres, 336 N.J. Super. 379 (App. Div. 2001), and Medford v. Duggan, 323 N.J. Super. 127 (App. Div. 1999). Defendant claimed that the Law Division erroneously relied on Pfender. But after analyzing both cases in detail, Judge Gilson found no conflict. “[P]roperly understood,” Pfender, like Medford, “require[d] a case-by-case, fact-specific analysis.”

Judge Gilson proceeded to “clarify that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation.” Instead, the multi-part test of Rule 4:10-2(c) applies in every case.

The first part of that test is “whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representative,” who can be an “insurer or agent” of that party. If so, then the party seeking the materials must satisfy a two-part standard: “(1) show a substantial need for the discovery; and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials.”

The Law Division erred in failing to apply that test. Because the court had used a bright line rule, the record here was insufficient for the panel to decide the merits of the work product issue based on the fact-intensive test of Rule 4:10-2(c). Accordingly, the panel reversed the Law Division’s order that had required defendant to produce the investigator’s materials, offered some general guidance, and remanded for further proceedings in which the Law Division would “apply the appropriate case-by-case, fact-specific analysis” that the cases and the Court Rule mandated.