The “balancing of interests” often finds its way into judicial opinions. That is especially so in difficult cases. Two opinions issued today, one by the Supreme Court and one by the Appellate Division, illustrate that.
State v. Chambers, ___ N.J. ___ (2023). This was Justice Fasciale’s first opinion for the Supreme Court. As is traditional, it was unanimous. The case came to the Court on leave to appeal from a ruling of the Law Division.
The question was whether and when a criminal defendant may seek in discovery a sexual assault victim’s pre-incident mental health records. Because the facts were that “defendant knew the victim and believed she suffered from a pre-incident mental illness that impaired her ability to accurately recall the alleged incident,” the Court was required to “balance a sexual assault victim’s highly confidential and privileged communications and a defendant’s important right to present a meaningful defense.”
After a lengthy factual recitation, and in the course of an analysis of the important respective rights of both the accused and the victim that required balancing, Justice Fasciale announced “a heightened and multi-staged discovery standard.” Because that was a “new procedural and analytical framework,” the Court vacated the rulings below that had ordered the State to produce the victim’s purported records. The Court remanded the matter for supplementation of the record and further proceedings.
Though the opinion is well worth reading in full, Justice Fasciale provided a useful summary of the new standard. “First, to be entitled to an in camera inspection of those records, a defendant must preliminarily demonstrate by a preponderance of the evidence, (1) a substantial, particularized need for the records; (2) that the alleged mental illness is both relevant and material to a victim’s ability to perceive, recall, or recount the alleged assault, or a proclivity to imagine or fabricate it; and (3) that the information sought cannot be obtained through less intrusive means. Second, if a defendant satisfies that heavy preliminary burden after appropriate notice to the victim as we later describe, the judge must conduct an in camera inspection and determine whether to ‘pierce’ the privilege, redact the records, and produce them under a protective order.” Finally, the Court “outline[d] a less formal process through which defendants may make requests for discovery of the pre-incident mental health records of an alleged sexual assault victim by letter to the prosecutor’s office.” Nonetheless, Justice Fasciale stated, the Court “discourage[d] routine requests in all cases” and “expect[ed] such requests will be rare.”
Notably, the normal abuse of discretion standard for discovery orders did not apply. Justice Fasciale stated that it would be “unfair” to apply that standard since the Court had “exercised our constitutional authority over the practices and procedures of our courts . . . to ensure greater
fairness in the administration of justice,” and had created a new procedure that was not before the lower courts.
Evolution AB (Publ.) v. Marra, ___ N.J. Super. ___ (App. Div. 2023). From a sexual assault case to an appeal involving a defamation claim against a law firm. This opinion was somewhat unusual, as the three-judge panel (Judge Sumners, who did not participate at oral argument but joined the opinion with the consent of all counsel, and Judges Susswein and Fisher), issued this published decision per curiam.
As the panel summarized, “Defendants – an attorney and law firm – have a client that produced a report, which asserts that plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client’s behest, the defendant attorneys sent the report to the New Jersey Division of Gaming Enforcement (DGE). When the media learned of the report, plaintiffs sued the defendant attorneys for defamation and other torts, and successfully obtained an order compelling the defendant attorneys to provide their client’s identity.” On leave to appeal, the Appellate Division vacated that ruling and remanded the case for further proceedings.
The court said that there was a need to “balance important societal interests”: namely, “an attorney’s obligation to avoid revealing a client’s identity against a litigant’s right to the discovery of information necessary for its pursuit of a civil cause of action.” The attorney’s obligation arose out of Rule of Professional Conduct 1.6, and the panel discussed that rule, and the parties’ “polar-opposite” views of it, in some detail. But the Appellate Division found both sides’ arguments “far too facile.” The court was “satisfied that somewhere between the parties’ polar-opposite positions lies a middle ground where the client’s desire for anonymity does not entirely eviscerate another’s valid cause of action or, stated the other way, where a civil claim may not be of sufficient weight to overcome the strong policy interests underlying RPC 1.6’s general rule of nondisclosure.”
“What is required is a balancing of these interests that can only be accomplished through a greater understanding of the Report’s veracity.” Quoting In re Richardson, 31 N.J. 391, 401 (1960), the panel recognized the “fundamental principle of full disclosure,” but noted that “[w]hen that principle conflicts with the attorney-client privilege it must, of course, give way but only to the extent necessary to vindicate the privilege and its underlying purposes. The matter is truly one of balance. . . .” That balancing “cannot occur solely by resorting to the parties’ general and self-serving assertions. Only a better understanding of the weight and substance of the parties’ allegations will lead to a satisfactory determination about whether the identity of the client or clients should be disclosed.” The panel remanded the case to the Law Division to do that balancing, “leav[ing] to the trial judge’s discretion the best way to proceed.”