Unfiled Discovery From Lawsuit Brought by Public Agency May be Producible Under Common Law Right of Access

Drinker Biddle & Reath LLP v. New Jersey Dep’t of Law & Public Safety, 421 N.J. Super. 489 (App. Div. 2011).  Under settled caselaw, litigation discovery that is not filed with the court during the course of a case will normally remain confidential against requests by a non-party that the discovery be made public.  The question in this case was whether production of discovery taken by private counsel in a case brought by a state agency (here, the New Jersey Department of Environmental Protection) could he compelled under either the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”) or the common law right of access.  The panel upheld a lower court’s decision that OPRA did not compel production.  The court remanded for reconsideration, however, as to the common law right of access.  Judge Simonelli wrote the opinion.

The parties agreed that the discovery in question constituted “government records” that were subject to OPRA.  But Judge Simonelli noted, quoting a Supreme Court decision issued earlier this year, that even under OPRA, “the public’s right of access [is] not absolute.”  One provision of OPRA, N.J.S.A. 47:1A-9b, states that OPRA does not “abrogate or erode any … grant of confidentiality heretofore established or recognized by … judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.” 

Judge Simonelli held that the caselaw that exempts unfiled discovery from production to third parties, which pre-dates OPRA, remains effective after OPRA and, under the provision of OPRA quoted above, defeats an OPRA demand for production of that discovery.  The panel remanded, however, the issue of whether the discovery material  could be obtained under the common law right of access.  A three-part test, which Judge Simonelli spelled out, governs that inquiry, and the lower court had not applied that test in reaching its decision.