Schorr & Associates’ Employment Case of The Week ending April 24, 2017

Osborne v. N.J. Transit, 2017 N.J. Super. Unpub. LEXIS 962 (App. Div. April 20, 2017)

This week, the Appellate Division issued an unpublished opinion relating to discovery of claims of discrimination by other workers for the same employer.  This opinion has caused great concern and anger among plaintiff employment practitioners.  I do not believe that this opinion changes any law, nor does it create any new roadblocks for employees to compel discovery of other claims of discrimination in the workplace.

Twenty years ago, my first big appellate victory was in the case of Connolly v. Burger King.  In that case, a sexual harassment case, we had sought discovery of claims made against Burger King of sexual harassment from every store in the District.  The trial judge had ruled that Ms. Connolly only worked in one store, and therefore Burger King should only have to produce discovery regarding claims from the one store.  We argued that Burger King’s quality control inspector, who was sexually harassing Ms. Connolly, went to every store in the District and therefore we need to know whether any other store in the District had received complaints of sexual harassment.  On an interlocutory appeal, the Appellate Division issued a rare published opinion holding that other claims of discrimination in the workplace are relevant, not only for liability, but also for punitive damages, and are therefore discoverable.

In this Case of the Week, Katrina Osborne, an assistant supervisor with New Jersey Transit, filed a sexual harassment lawsuit and sought discovery of other claims against NJT.  NJT resisted production and claimed that some of the documents were privileged.  A Superior Court Judge ordered the production, but never signed the order.  A second judge signed the order and then denied a motion for reconsideration.  Neither judge had agreed to review the documents in camera (in chambers) to determine whether there was privileged information, and instead left the burden on the defendant to redact any information they deemed confidential or privileged.

The Appellate Division upheld the part of the order that required production of other claims of discrimination.  That is the really important part of this case.  After 20 years, the cases of Connolly and Payton v. N.J. Turnpike Auth. are the law of New Jersey, and it is beyond dispute that Courts are required to order such production.  This case does not question the Plaintiff’s right to the documents, it merely addresses the procedures involves in the production of documents which the employer claims to be confidential or privileged.

When a party claims that information in an ordered document is privileged or confidential, it is customary that the judge will review the documents to ensure that the party is not improperly asserting privilege and that the claim is privilege is justified.  This is consistent with Payton and Connolly. Regarding confidentiality, “the balance weighs in favor of disclosure with appropriate procedures to ensure justified confidentiality in light of plaintiff’s paramount interest in obtaining relevant materials.” Connolly at 350.  The Osborne Court ruled that, in the event that a party claims privilege or confidentiality in a document to be produced, the Defendant shall not self-redact, but rather shall provide the documents to the court to ensure that the redactions are justified before turning the documents over.

Judges may not like this decision because it will create more work for them.  Consequently, they may be unhappy about ordering broad discovery of other claims.  But New Jersey’s Appellate Court in this opinion reaffirms the vitality of Connolly and will require Judges to not only order discovery of other claims but to also personally ensure that defendant employers do not unnecessarily redact important and necessary information.  Rather than seeing this as a negative opinion for employee plaintiffs, I believe that this opinion may delay discovery in some cases where privilege is claimed, but will ultimately end up providing additional useful information that has been too easily hidden by defendants who self-redact.

Appellate Judges: Lihotz, O’Connor, and Whipple. (Opinion per curiam)