MT HOLLY GARDENS CITIZENS IN ACTION, INC. et al v. TOWNSHIP OF MOUNT HOLLY et al

Filing 185

MEMORANDUM OPINION AND ORDER denying Mt. Holly's 158 Letter Brief. Parties shall serve the Court w/ an agreed upon DCO by 7/15/2013. Signed by Magistrate Judge Joel Schneider on 6/24/2013. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MOUNT HOLLY GARDENS CITIZENS
IN ACTION, INC., et al,
Plaintiffs,

Civil No. 08-2584 (NLH/JS)

v.
TOWNSHIP OF MOUNT HOLLY, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Mount Holly defendants’ (“Mount Holly”) March
13, 2013 letter brief application (“letter”) [Doc. No. 158] regarding disputed language in the
parties’ proposed Discovery Confidentiality Order. 1

2

Specifically, the dispute involves Mount

Holly’s request that the Discovery Confidentiality Order include language that would not require
it to produce to plaintiffs the information in its relocation files, which would enable plaintiffs to
identify and locate relevant witnesses who were relocated from the neighborhood at issue to
homes outside the neighborhood. The moving parties already have access to this information. 3

1

The March 13, 2013, letter brief was submitted by counsel for the Mount Holly defendants.
The Mount Holly defendants include the Township of Mount Holly, the Township Council, the
Township Manager, the former Mayor, and the current Mayor. In the letter, counsel stated that
“all defendants agree this provision is critical.” Letter at 1. Keating Urban Partners L.L.C.
(“Keating”) and Triad Associates, Inc. (“Triad”), the non-Mount Holly defendants, have not filed
briefs on this issue.
2
In their letters and briefs the parties sometimes refer to the Discovery Confidentiality Order as a
protective order. The Court will refer to the proposed order as a Discovery Confidentiality
Order. See L. Civ. R. 5.3(b)(4).
3
Based on representations made during oral argument the Court believes Mount Holly and Triad
have access to the relocation files. The Court does not know if Keating has similar access to the
files, although it suspects it does. Whether Keating has access to the relocation files is
immaterial to the Court’s decision.
1

Plaintiffs oppose Mount Holly’s application. 4 At oral argument the parties were granted leave to
file supplemental briefs, which the Court received. [Doc. Nos. 174, 177]. For the following
reasons Mount Holly’s request is DENIED.
Background
This case involves the proposed redevelopment of Mount Holly Gardens (the “Gardens”),
a neighborhood located in Mount Holly Township, New Jersey. The Gardens is an ethnically
diverse neighborhood whose residents are predominately low income African-American and
Hispanic families. Third Amended Complaint ¶ 1 [Doc. No. 157]. Plaintiffs brought suit
alleging Mount Holly’s redevelopment plan for the Gardens violates the Fair Housing Act
(“FHA”), the Civil Rights Act of 1866, the Equal Protection and Due Process clauses of the
Fourteenth Amendment, the Equal Protection Clause of the New Jersey Constitution, and various
New Jersey statutes. 5 Plaintiffs allege the redevelopment plan has a disparate impact on their
minority community. See generally Third Amended Complaint. Plaintiffs alleged that if the
redevelopment proceeded, hundreds of affordable residential homes would be destroyed and
replaced with new housing that is unaffordable for Gardens residents. Plaintiffs also allege the
redevelopment will occur “without providing replacement housing that is affordable to most such
households.” Id. ¶ 202(c). Further, plaintiffs allege that “many former Gardens residents who
moved out of the Gardens under threat of condemnation or eviction have not been able to find

4

Plaintiffs’ initial objections to the disputed language were included in the March 13, 2013 letter
brief. See Letter at 2-3.
5
Plaintiffs are Mount Holly Gardens Citizens in Action, a voluntary non-profit corporation
consisting of Gardens residents, and individually named Gardens residents. See Third Amended
Complaint ¶ 11. Thirty-eight Gardens residents are individually named plaintiffs. See id. The
parties, however, recently indicated this number is likely to change.
2

comparable housing at locations as desirable as the Gardens community and have been forced to
live under worse conditions and/or pay higher housing costs.” Id. ¶ 197. 6
A component of the redevelopment plan consisted of relocating Gardens residents to
different residences outside of the Gardens neighborhood.

To foster relocation efforts

defendants created a Relocation Office, where residents of the Gardens interested in leaving the
neighborhood could go for assistance. Defendants’ Supplemental Brief in Support of Discovery
Confidentiality Order (“Brief”) at 6 [Doc. No. 174]. To receive relocation benefits from the
Relocation Office, Gardens residents were required to provide personal information to
defendants, including their new address, phone number and financial information. Id. at 12.
Mount Holly argues former Gardens residents provided this information under the condition it
remain private and would not be disclosed without their consent to anyone other than its
employees and representatives. Id. at 7; Affidavit of Marcia Holt ¶¶ 7-9 [Doc. No. 174-1].
Mount Holly alleges that many Gardens residents have successfully relocated to housing outside
the Gardens. Brief at 15.

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On January 3, 2011, the Honorable Noel L. Hillman granted defendants’ motions for summary
judgment, which were converted from motions to dismiss, and dismissed plaintiffs’ claims. See
Mount Holly Citizens in Action, Inc. v. Township of Mount Holly, No. 08-2584 (NLH)(JS),
2011 WL 9405 (D.N.J. Jan. 3, 2011). As to the FHA claim, Judge Hillman determined that
plaintiffs failed to establish a prima facie case of disparate impact under 42 U.S.C. § 3604(a),
and failed to rebut Mount Holly’s legitimate interest in redeveloping the area. Id. at *2-6. On
appeal, the Third Circuit determined plaintiffs established a prima facie case of disparate impact
under the FHA. See Mount Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly,
658 F.3d 375, 382-85 (3d Cir. 2011). The Third Circuit also determined there were genuine
issue of material fact as to whether the Township met its initial burden of showing there was no
less discriminatory alternative to its redevelopment plan. Id. at 386-87. As a result, the Third
Circuit remanded plaintiffs’ FHA claims for further proceedings. Id. at 387. Defendants
appealed this decision, and the Supreme Court recently granted defendants’ petition for
certiorari. Mount Holly, NJ v. Mount Holly Gardens Citizens, --- S. Ct. ---, 2013 WL 2922132,
at *1 (June 17, 2013).
3

The parties were ordered to serve the Court with a Discovery Confidentiality Order or “a
copy of the latest version of the Order with a list of the issues in dispute.” See February 28, 2013
Order [Doc. No. 154]. Mount Holly provided a copy of a proposed order and a letter explaining
the parties’ dispute. The parties agree on the text of the proposed Discovery Confidentiality
Order except for one paragraph, which addresses the release of confidential information of nonparties who relocated from the Gardens.

The confidential information is the information

plaintiffs need to identify and locate the former residents of the Gardens who relocated. The
information is contained in the files compiled by the Relocation Office. See March 13, 2013
Letter Brief from Defendants (“Letter”) [Doc. No. 158]. Mount Holly originally proposed that
before plaintiffs could contact relocated residents they needed approval from the defendants or
the Court. Mount Holly proposed the following paragraph:
[Plaintiffs’] Counsel shall not contact any person identified in any relocation files, unless
the person is a named Plaintiff. If [plaintiffs’] Counsel wishes to contact any other
person identified in any relocation files, they must obtain consent of all Parties or petition
the Court for permission and demonstrate why the information sought is relevant and
why it cannot be obtained from any other source.
See Proposed Discovery Confidentiality Order ¶ 7 [Doc. No. 158-1]. In its supplemental brief
Mount Holly revised the disputed language and now proposes that it be authorized to withhold
the names and last known addresses of the relocated residents.

Mount Holly’s proposed

paragraph now reads:
Each Defendant shall be entitled to redact from any Confidential Documents, including
but not limited to Relocation Files, that are produced, the names, addresses, and any other
personal identifying information such as names, addresses, telephone numbers, social
security numbers, driver’s license numbers, credit card numbers or other account
numbers, including bank account numbers, or any other information that can be used to
uniquely identify, contact, or locate a single Person or that can be used with other sources
to uniquely identify a single Person, for any former Gardens resident who has relocated
from the Gardens. (emphasis supplied)

4

Brief at 1. If approved, Mount Holly’s language would bar plaintiffs from obtaining information
that would enable them to learn the names and present locations of the relocated residents.
Mount Holly argues its proposed paragraph is necessary to adequately protect the confidentiality
rights of non-party former Gardens residents who provided personal information to the
Relocation Office. Further, Mount Holly argues the former Gardens residents are fearful of
harassment because they left the Gardens.

Mount Holly also argues the former Gardens

residents would be subject to embarrassment if plaintiffs are given access to the complete
relocation files, due to the personal nature of the information contained therein. As a result,
Mount Holly argues there is good cause to include its proposed paragraph in the parties’
Discovery Confidentiality Order, which, as noted, would authorize defendants to redact all
personal information from their relocation files, including the names of former Gardens residents
and their new addresses. Id. at 15-20.
Plaintiffs argue the personal information Mount Holly seeks to withhold is discoverable
because it is relevant to the claims and defenses in the case. Specifically, plaintiffs seek to verify
Mount Holly’s claim that numerous Gardens residents have successfully relocated. 7 Plaintiffs’
Response Brief in Opposition to Discovery Confidentiality Order (“Response”) at 4-6 [Doc. No.
177]. Plaintiffs argue that providing their counsel with the names and addresses of former
Gardens residents will allow them to contact these individuals. As a result, plaintiffs allege, they
will “discover genuine issues of material fact, including whether [former residents] had been
provided adequate relocation assistance, felt improperly pressured to leave, and had been
relocated outside of the Township.” Id. at 5. Plaintiffs agree the relocation files contain personal

7

The Third Circuit stated there were genuine issues of material fact as to whether the
defendants’ relocation efforts were adequate “that must be resolved through further discovery on
remand.” Mount Holly Gardens Citizens in Action, Inc., 658 F.3d at 387 n. 10.
5

information that should not be disclosed to the public. 8 Plaintiffs, however, argue that Mount
Holly has not established the necessary good cause to withhold relevant information from the
relocation files that will only be reviewed by plaintiffs’ counsel. As a result, plaintiffs argue, the
proposed order should allow them full access to the relocation files while prohibiting disclosure
to the general public. Id. at 7-10.
Discussion
Pursuant to Fed. R. Civ. P. 26(c) the court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense.
Courts have discretion in determining whether good cause for the entry of a protective order
exists. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 789 (3d Cir. 1994) (internal citations
omitted). “Good cause is established on a showing that disclosure will work a clearly defined
and serious injury to the party seeking closure.” Id. at 786 (internal citations omitted). Further,
“broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not
support a good cause showing.” Id. (quoting Cipollone v. Liggett Grp, Inc., 785 F.2d 1108, 1121
(3d Cir. 1986)). As a result, to establish good cause a party must specifically explain the injury
that would result if a protective order were not entered. Clark v. Prudential Ins. Co. of Am., No.
08-6197 (DRD), 2011 WL 1833355, at *4-5 (D.N.J. May 13, 2011). Courts then engage in a
balancing test, weighing “the requesting party's need for information against the injury that
might result if uncontrolled disclosure is compelled.” Pansy, 23 F.3d at 787. For the balancing
test courts may also consider the following list of non-exhaustive factors:

8

The parties agree the Discovery Confidentiality Order should prohibit any personal information
contained in the relocation files from public disclosure. See Response at 8-9; see also Proposed
Discovery Confidentiality Order ¶ 2 (“Because of the highly sensitive personal information in
the relocation documents, all relocation documents shall be designated “Attorney’s Eyes Only”
even if the documents are not so marked or labeled.”).
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1) whether disclosure will violate any privacy interests; 2) whether the information is
being sought for a legitimate purpose or for an improper purpose; 3) whether disclosure
of the information will cause a party embarrassment; 4) whether confidentiality is being
sought over information important to public health and safety; 5) whether the sharing of
information among litigants will promote fairness and efficiency; 6) whether a party
benefitting from the order of confidentiality is a public entity or official; and 7) whether
the case involves issues important to the public.
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). If a court ultimately
determines there is good cause to issue a Discovery Confidentiality Order, it has wide latitude to
tailor the order to the circumstances of the case. See Fed. R. Civ. P. 26(c); Campbell v.
Sedgwick Detert, No. 11-642-ES-SCM, 2013 WL 1314429, at *8 (D.N.J. Mar. 28, 2013).
The Court finds that Mount Holly has failed to demonstrate good cause to include its
proposed language in the parties’ Discovery Confidentiality Order. The parties do not dispute
that the personal information in the relocation files should not be disclosed to the public.
However, since the personal information in the relocation files is relevant to claims and defenses
in the case, it must be produced to plaintiffs. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense –
including . . . the identity and location of persons who know of any discoverable matter.”). Apart
from the fact that the disputed information is relevant, it would be fundamentally unfair for
defendants to know the names and current locations of relevant witnesses while denying
plaintiffs access to the same information.
Mount Holly argues disclosing the personal information in the relocation files will violate
the privacy interests of non-party former Gardens residents. Mount Holly argues the former
residents have a reasonable expectation of privacy because the defendants assured them that their
personal information would remain confidential. Brief at 6-7; Affidavit of Marcia Holt ¶¶ 7-9.
However, Mount Holly’s assurances do not trump the discovery provisions in the Federal Rules

7

of Civil Procedure. If a defendant’s assurances of privacy could operate as a roadblock to the
discovery of relevant information, it would create a discovery exception that does not exist in the
Federal Rules. If Mount Holly’s past assurances could block relevant discovery here, parties are
likely to give similar assurances in other cases where they are reluctant to disclose the identities
and locations of relevant witnesses. This would wreak havoc with the concept of broad and
liberal discovery under the Federal Rules. See Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir.
1999) (“It is well recognized that the federal rules allow broad and liberal discovery.”).
Plaintiffs have established why the requested information is relevant. Amongst other
reasons, the information will be used to identify and locate relevant witnesses.

Since the

information is relevant it must be produced. While Mount Holly’s concerns for the protection of
the former Gardens residents’ privacy interests is legitimate, its concerns are overblown. The
personal information will only be used by plaintiffs’ counsel to locate former Gardens residents
for this litigation. Therefore, providing plaintiffs’ counsel with the complete relocation files will
only minimally compromise the former residents’ privacy expectations. None of the personal
information will be released to the public, and none of the information will be used for an
illegitimate purpose. It is not sufficient for defendants to produce their relocation files but yet
redact the identifying information for the relocated residents. If they so choose, plaintiffs have a
right to interview (or depose) the witnesses. Plaintiffs are not bound to accept Mount Holly’s
assurances that its relocation efforts were properly done and the relocated residents are satisfied
with their new accommodations.
Mount Holly argues that allowing plaintiffs’ counsel full access to the relocation files
would violate former Gardens residents’ privacy because the personal information would be
redacted if the files were produced pursuant to a request under the Open Public Records Act

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(“OPRA”), N.J.S.A. 47:1A-1, et seq. Brief at 7. Mount Holly’s reliance on OPRA is misplaced.
The provisions of OPRA do not limit the discovery plaintiffs may obtain in the case. See V.A.
ex rel M.A. v. N.J. Nat’l Guard Challenge Youth Program, No. 06-347(RMB), 2007 WL
980453, at *2 (D.N.J. Mar. 29, 2007). Because the present dispute involves whether plaintiffs’
counsel will have full access to the relocation files for litigation purposes, OPRA is inapplicable.
Mount Holly argues disclosure would violate former Gardens residents’ constitutional right to
privacy.

Brief at 12.

This argument is also misplaced because the non-party personal

information will be provided to plaintiffs’ counsel for litigation purposes only. Therefore,
former Gardens residents’ right to privacy is not violated. See C.M. v. Bd. of Educ. of Union
Cnty. Reg’l High Sch. Dist., 128 Fed. Appx. 876, 883-84 (3d Cir. 2005) (finding that release of
parents’ personal information, including addresses, to individuals involved in IDEA litigation did
not offend their constitutional right to privacy).
Mount Holly argues that plaintiffs can evaluate its relocation efforts without obtaining
non-parties’ names, addresses or other identifying information. Mount Holly adds that plaintiffs
“have no valid reason for seeking the names and addresses of non-party former residents.” Brief
at 16.

The Court disagrees.

Plaintiffs have a right to speak with the relocated residents

themselves. Plaintiffs do not have to rely on Mount Holly’s representations regarding what the
relocated residents will say if interviewed. Plaintiffs seek the names and other identifying
information of former Gardens residents to ascertain whether relocation efforts were successful.
Plaintiffs also want to identify and locate relevant witnesses in the case. Although Mount Holly
argues the redacted files are sufficient for plaintiffs’ needs, without the complete files plaintiffs
may be unable to ascertain the identities and current location of many former Gardens residents.
Response at 21. Because plaintiffs may be unable to identify and contact former Gardens

9

residents without the requested information, they are plainly seeking the information in the
relocation files for a legitimate purpose. Mount Holly cites no case law to support an argument
that plaintiffs must first show they are unable to locate the former residents before they can
obtain discoverable information that may enable them to locate relevant witnesses.
Mount Holly argues disclosure would violate non-party former Gardens residents’
privacy interests because the relocation files contain highly sensitive personal information,
including financial information, medical conditions, and other family issues. As a result, Mount
Holly argues, the non-parties would be subject to embarrassment if the files are released. Brief
at 16. Mount Holly cites Arnold v. Pa., Dep’t of Transp., 477 F.3d 105, 109 (3d Cir. 2007) and
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 27-28 (1984) to support its argument. In Arnold
and Seattle Times Co., however, the issue was whether non-parties’ personal information would
be disclosed to the public. Here, because the relocation files will only be disclosed to plaintiffs’
counsel, Mount Holly’s concerns, as well as those of the former residents, are alleviated.
Mount Holly argues many former Gardens residents expressed concern about being
harassed because they left the Gardens. Mount Holly alleges there is “bad blood” and hostility
between current and former Gardens residents. Affidavit of Marcia Holt ¶¶ 11-13. Mount Holly
further argues that former Gardens residents view being contacted by plaintiffs or their counsel
as harassment. Brief at 19-20. However, this is the type of broad, unsubstantiated allegation of
harm specifically rejected by the Third Circuit.

Case law requires specificity; a general

allegation of potential harm is insufficient. Pansy, 23 F.3d at 786. Further, being contacted by
an attorney or her representative to speak about litigation is not a serious harm that bars the
production of relevant information. While the former Gardens residents may prefer not to be
contacted about this litigation, this does not bar the production of relevant information that could

10

assist plaintiffs in locating relevant witnesses. If a witness’ reluctance to be contacted about a
litigation he is not involved in could bar the discovery of relevant witness information, it would
not be an exaggeration to predict that most third-party witnesses would not be identified. This is
anathema to how the discovery provisions of the Federal Rules work.
Last, Mount Holly argues that releasing personal information in the relocation files would
chill relocation efforts for the remaining Gardens residents. Brief at 17-18. Mount Holly
provides no support for this argument.

Again, this is the type of broad, unsubstantiated

allegation of harm specifically rejected by the Third Circuit. Pansy, 23 F.3d at 786.
Conclusion
The legal issue the Court has to address boils down to the question of whether Mount
Holly may withhold relevant information because years ago it may have given non-binding
assurances to Gardens residents that the information would not be disclosed to third persons.
The question begets the answer. Mount Holly may not withhold from discovery relevant nonprivileged information that permits plaintiffs to identify and locate relevant witnesses. 9
ORDER
Accordingly, and for all the foregoing reasons,
IT IS HEREBY ORDERED this 24th day of June, 2013, that Mount Holly’s March 13,
2013 letter brief application [Doc. No. 158] requesting the Court to order that the parties’
Discovery Confidentiality Order include its proposed language in paragraph seven is DENIED;
and it is further

9

To be sure, there may be instances where a witness has a legitimate concern for his or her
safety or well-being that would limit the discovery of his or her identity or present whereabouts.
However, for such an order to be entered corroborating evidence would have to be provided,
instead of the vague hearsay statements Mount Holly relies upon.
11

ORDERED that the Discovery Confidentiality Order must allow plaintiffs full access to
the relocation files. All personal identifying information in the relocation files shall be
designated as Attorney’s Eyes Only and shall only be used to assist plaintiffs to identify and
locate the relocated Gardens residents; and it is further
ORDERED that by July 15, 2013, the parties shall serve the Court with an agreed upon
Discovery Confidentiality Order consistent with this Order, with an affidavit that complies with
L. Civ. R. 5.3(c).
s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

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