SHIPYARD ASSOCIATES, L.P. v. CITY OF HOBOKEN

Filing 73

OPINION regarding plaintiff's application to compel. Signed by Magistrate Judge Mark Falk on 8/3/15. (LM, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHIPYARD ASSOCIATES, L.P.,

Civil Action No. 14-1145 (CCC)

Plaintiff,
v.
CITY OF HOBOKEN,

OPINION
Defendant.

FALK, U.S.M.J.
This Section 1983 action was brought by Shipyard Associates, L.P., a developer, against
the City of Hoboken to invalidate two municipal ordinances. Before the Court is Shipyard’s
request to compel the production of documents withheld as privileged. [ECF No. 59.] The
application is opposed. [ECF No. 62.] No argument was heard. Fed. R. Civ. P. 78(b). For the
reasons that follow, the application is GRANTED IN PART AND DENIED IN PART.
I.

BACKGROUND
A.

Introduction

Plaintiff Shipyard Associates, L.P. is a developer and the owner of property along the
Hoboken waterfront, which includes real property that is on piers and platforms extending into
the Hudson River. Defendant is the City of Hoboken. The parties have a history dating back to
1996 (including prior and current state court actions), which primarily focuses on Shipyard’s

desire to construct a residential project consisting of two, eleven-story towers and related
parking.1
In December 2013, following the aftermath of Superstorm Sandy, Hoboken adopted two
municipal Ordinances addressing issues relating to flooding in Hoboken.2 These Ordinances,
among other things, prohibit construction on properties that are located on piers and platforms
that project into the Hudson River. The Ordinances have prevented construction of the Monarch
Project.
On February 21, 2014, Shipyard filed its Complaint against Hoboken, alleging that
Hoboken’s adoption and implementation of the Ordinances was arbitrary and capricious, ulta
vires, and unenforceable. [ECF No. 1.] Shipyard’s contention is that the Ordinances were
passed to halt the Monarch Project. On March 18, 2014, Hoboken answered the Complaint.3
At present, the parties have briefed a discovery dispute over the production of allegedly
privileged documents. In some ways, this dispute has been percolating since the beginning of the
case as described below.
1

The parties refer to this proposed development as “the Monarch at Shipyard.”

2

The Ordinances are: Ordinance Z-263, entitled An Ordinance Amending Chapter section
104 (Flood Damage Prevention), and Ordinance Z-264, entitled An Ordinance Amending Chapter
196 (Zoning) Addressing Community Health, Safety and General Welfare Through Flood Hazard
Mitigation Measures and Development (collectively, the “Ordinances”). Copies of the Ordinances
are attached to the Complaint as Exhibits A and B.
3

After issue was joined, two entities—Fund for Better Waterfront (“FBW”) and Hudson
Tea Buildings Condominium Association (“Hudson Tea”)—made motions to intervene in the case
as intervenor-defendants, which Shipyard opposed. FBW is a nonprofit organization comprised of
Hoboken residents focused on issues such as open space preservation and recreation along the
Hudson River waterfront in Hoboken. The Court granted FBW’s motion to appear in this case as
an intervenor-defendant on November 26, 2014. Hudson Tea is situated directly adjacent to
Shipyard’s proposed Monarch project. It was granted intervenor-defendant status on February 10,
2015.
2

B.

Disputed Scope of Discovery in This Case

Since the outset of the case, the parties informally disputed the proper scope of discovery
in this case, which is focused on the propriety of state legislative action.
Hoboken initially argued that no discovery was appropriate in this case beyond the
Hoboken City Council official record. [ECF No. 14 at 3.]
Shipyard sought fairly extensive discovery well beyond the Hoboken official record,
including requests for legislators’ personal text messages, emails of Hoboken’s individuals
officers and employees, and depositions. The parties were directed to meet and confer, and if
agreement could not be reached, submit letters to the Court.
On September 12, 2014, Hoboken submitted a letter objecting to nearly all discovery in
this case beyond the Hoboken legislative record. Hoboken reiterated its narrow view of what
type of discovery should be permitted:
Hoboken [objects to discovery] because the validity of a municipal
ordinance is to be determined on the basis of the objective effect of
its terms — the subjective motives and mental processes of the
individuals who drafted the ordinance or the government officials
who decided to adopt it are irrelevant. By way of discovery in this
action, Hoboken has provided Shipyard with a complete copy of all
the documents and other materials which comprise the record of
the Hoboken City Council’s decision to adopt the ordinances.
(Letter dated September 12, 2014, at 2.)
Hoboken’s argument then was that the type of discovery Shipyard was seeking was not
“relevant,” as that term is used in the Rule 26 context, to the claims and defenses in this case.4

4

“Relevance” is a well-known concept. In short, Rule 26 allows for discovery of any matter
relevant to a party’s claims or defenses. See Fed. R. Civ. P. 26(b). Rule 26 is construed
liberally. See Tele-Radio Sys. Ltd. v. DeForest Elecs., Inc., 92 F.R.D. 371, 375 (D.N.J.1981).
Relevance is a broader inquiry at the discovery stage than at the trial stage. See Nestle Food
Corp. v. Aetna Cos. & Surety Co., 135 F.R.D. 101, 103 (D.N.J.1990). “Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The burden is on the party seeking
3

(Id.) Hoboken’s argument was understandable, since the Third Circuit has made clear that the
motives of those that pass legislation are irrelevant if the Township had other legitimate state
interests in passing the legislation. See, e,g., County Concrete Corp. v. Township of Roxbury,
442 F.3d 169, 170 (3d Cir. 2006); County Concrete Corp. v. Township of Roxbury, 2009 WL
872215, at *4 (D.N.J. Mar. 30, 2009) (“Because the Court finds that the Township had a
legitimate interest in passing the Ordinance, it is irrelevant whether or not it was also passed with
improper motives”).5
Claiming that it had an obvious state interest served by the Ordinances—flood prevention
and protection in light of the destructive Hurricane Sandy—Hoboken requested that “in the event
the Court finds any particular claims asserted by Shipyard in its Complaint justify discovery . . . .
permission [be granted] to file a dispositive motion as to such claims.” (Def.’s September 12,
2014 Letter at 23.)
Shipyard effectively conceded that inquiry into the “motives” of legislators was
impermissible in a case like this. (Pl.’s Letter dated September 23, 2014, at 15.) Yet, it argued
that at least some discovery should be allowed into the “purpose” behind the Ordinances and that
“it is simply impossible for either the Court or Shipyard to know — without examining the
requested documents – whether Hoboken is currently holding materials relevant to ‘purpose’

discovery to “show that the information sought is relevant to the subject matter of the action and
may lead to admissible evidence.” Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J.2000);
see also Nestle, 135 F.R.D. at 104. Although construed liberally, Rule 26 is not limitless—e.g.,
the Court may limit discovery when the burden is likely to outweigh the benefits. See Bayer AG
v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999).
5

This creates a high bar for prevailing on a facial substantive due process challenge to a
legislative act – a plaintiff must “allege facts that would support a finding of arbitrary or
irrational legislative action by the Township.” County Concrete, 442 F.3d at 169.

4

rather than ‘motive’.” (Id.)
Hoboken did not challenge the sufficiency of the Complaint. Since there appeared to be a
factual dispute on the face of the pleadings, and also because discovery has been allowed in
similar cases prior to summary judgment (including County Concrete, supra), the Court was not
prepared to exclude any discovery. The parties were directed to confer. Hoboken’s counsel was
encouraged to reexamine documents in its possession and determine if there were some limited
materials—focused on the “purpose” of the Ordinances—that could be produced to swiftly move
this case forward. This was a suggested compromise position; no rulings regarding the relevance
of Shipyard’s specific discovery requests was ever presented or decided.
C.

Shipyard’s Request to Compel

Eventually, Shipyard advised the Court that a large number of documents were being
withheld by Hoboken on various privilege grounds—i.e., the attorney-client privilege; the work
product doctrine; the common interest doctrine; and the deliberative process privilege—which it
claimed was improper. The Court authorized informal briefs to be submitted and for Shipyard to
select representative samples from Hoboken’s privilege log for in camera review.
The concept was that the Court would review the samples and make “representative”
rulings, which could then be applied to any similar documents being withheld—a technique that
this and other courts have used when there are large numbers of privileged documents in dispute.
See, e.g., E.I. du Pont de Numours & Co. v. MacDermid, Inc., 2009 WL 3048421, at *1 (D.N.J.
Sept. 17, 2009); La Mun. Police Empl. Ret. Sys. v. Sealed Air, 253 F.RD. 300, 304-05 (D.N.J.
2008); In re Gabapentin Patent Litig., 214 F.R.D. 178, 181 & n.1 (D.N.J. 2004).
D.

The Current Briefing

In April 2015, the parties submitted informal briefing of their dispute. Shipyard seeks the
production of seven groups of documents—identified as “Categories” “A” through “G.” To
5

arrive at Categories A through G, Plaintiff apparently reviewed all 472 entries on Hoboken’s 96page privilege log and assigned each document to one of 7 categories. Then, from each of those
seven categories, Shipyard selected a number of samples for the Court to review in camera. 44
total samples were selected. The Court received the samples on June 30, 2015.
However, the parties’ briefs are not what the Court requested—i.e., briefs on targeted
privilege issues. The briefs do not provide the specific discovery requests in dispute. There is no
meaningful discussion of the relevance of the disputed documents, even though it appears to be
in dispute. Indeed, Shipyard assumes that all the documents sought in the motion are relevant,6
which is not something that this Court has ever decided, and Hoboken apparently continues to
dispute.7
More problematic is the fact that, for reasons unknown, the parties do not address the
same samples. Thus, Hoboken fails to address the actual samples Shipyard selected for the Court
to review. Instead, the City simply selects the first five documents in each of Categories A
through G. The result is that Hoboken’s brief does not address any of the samples Shipyard
selected and this Court reviewed in camera; but rather, addresses other documents that have not
been selected. In some ways, the parties’ briefs are like ships passing in the night. The
consequence is that there are many arguments that are simply unaddressed, which makes it
difficult in the context of important issues like attorney-client privilege.
*

*

*

Given the above, the Court has struggled with how best to proceed. In an attempt to

6

See, e.g., Pl.’s Reply Br. at 1 (“[T]he relevant standard is whether the documents sought by
Shipyard are relevant (which has been established) and privileged.” ).
7

See, e.g., Def.’s Opp’n Br. at 1 (“Since the commencement of this action, Hoboken has
maintained that the scope of relevant discovery herein is limited to the documents comprising the
record of the Hoboken City Council’s public hearing on the ordinances . . . .”).
6

decide what can be decided and provide guidance to the parties, here is what follows. First, the
general legal standards relating to the privileges that are raised in the parties’ briefs. Second, the
Court addresses four preliminary privilege questions Shipyard has briefed. Third, the Court has
reviewed the representative samples and made decisions on each the best it can under the
circumstances.
II.

GENERAL LEGAL STANDARDS
A.

Attorney-Client Privilege8

The purpose of the attorney-client privilege is to “encourage full and frank
communications between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S.
383, 389 (1981). The privilege is founded upon “the necessity, in the interests and
administration of justice, of the aid of persons having knowledge of the law and skilled in its
practice, which assistance can only be safely and readily availed of when free from the
consequences or apprehension of disclosure.” Hunt v. Blackburn, 128 U.S. 464, 470 (1888).
The Third Circuit has enumerated the elements of the privilege as follows:
The privilege applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of
the bar of a court, or his subordinate and (b) in connection
with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either (i)
an opinion on law or (ii) legal services or (iii) assistance in
some legal proceeding, and not (d) for the purpose of
committing a crime or tort; and (4) the privilege has been
(a) claimed and (b) not waived by the client.
In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979).

8

This case has both federal and state law claims. Under such circumstances, the federal
common law of privilege applies. See Wm. T. Thompson v. General Nutrition Corp., Inc., 671 F.2d
100, 103 (3d Cir. 1982).
7

The party asserting the attorney-client privilege bears the burden to show that it applies.
See In re Grand Jury Empanelled Feb. 14, 1978, 603 F.3d 469, 474 (3d Cir. 1979). While it is
true that the attorney-client privilege is narrowly construed because it “obstructs the truth-finding
process,” Westinghouse Elec. Corp. v. Republic of the Phillippines, 951 F.2d 1414, 1423 (3d Cir.
1991), the privilege is not “disfavored.” In re Teleglobe Commc’ns Corp., 493 F.3d 345, 361
n.13 (3d Cir. 2007). Courts should be cautious in their application of the privilege mindful that
“it protects only those disclosures necessary to obtain informed legal advice which might not
have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). In all
instances, the facts underlying any given communication remain discoverable. See Upjohn, 449
U.S. at 395-96 (“Protection of the privilege extends only to communications not to facts.”).
Communications which relate to business rather than legal matters do not fall within the
protection of the privilege.” Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J. 1990).
Therefore, the general rule is “while legal advice given to a client by an attorney is protected by
the privilege, business advice generally is not.” In re Nat’l Smelting of New Jersey, Inc.
Bondholders’ Litig., No. 84-3199, 1989 U.S. Dist. LEXIS 16962, at *18 (D.N.J. June 29, 1989)
(citation omitted).
While this rule seems simply stated, its application is much less so; the reason being, “in
the corporate community, legal advice ‘is often intimately intertwined with and difficult to
distinguish from business advice.’” Leonen, 135 F.R.D. at 98-99 (quoting Sedco Int’l SA v.
Cory, 683 F.2d 1201, 1205 (8th Cir. 1982)). Because it is “often too difficult, impractical and
unrealistic to compartmentalize whether certain advice given to a client is legal in nature or
business in nature . . . the policy behind the attorney-client privilege is best upheld . . . where the
attorney-client relationship is predominantly for the purpose of rendering legal services.” In re
Nat’l Smelting, 1989 U.S. Dist. LEXIS 16962, at **21-22.
8

The proper inquiry in the business versus legal context “is focused on whether the
communication is designed to meet problems which can fairly be characterized as predominately
legal.” Leonen, 135 F.R.D. at 99. In order to meet this standard, the claimant should
demonstrate “that the communication would not have been made but for the client’s need for
legal advice or services.” Leonen, 135 F.R.D. at 99 (quotations omitted). Merely “cc’ing” an
email to an attorney is clearly insufficient to establish the privilege. See In re Avantel, 343 F.3d
311, 321 (5th Cir. 2003). In other words, “emails in which in-house or outside attorneys are
merely sent copies of the text of the email, or in which they are merely one of many addresses,
should not be privileged, unless the email is directed to the attorney or sent by the attorney . . . .”
Id. at 321 n.11 (citation omitted). Finally, if a communication (such as an email) is privileged
but contains attachments, “each attachment must individually satisfy the criteria for establishing
the privilege. Merely attaching something to a privileged document will not, by itself, make the
attachment privileged.” Leonen, 135 F.R.D. at 98.
B.

The Work-Product Doctrine9

The federal work-product doctrine is set forth in Federal Rule of Civil Procedure
26(b)(3), which provides:
Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation
or for trial by or for another party or its representative
(including the other party’s attorney, consultant, surety,
idemnitor, insurer, or agent). But, subject to Rule 26(b)(4),
those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means.

9

The work product doctrine is governed, in all cases, by a uniform federal standard. United
Coal Cos. v. Powell Const. Co., 839 F.2d 958, 966 (3d Cir. 1988).
9

Fed. R. Civ. P. 26(b)(3). The doctrine itself “shelters the mental processes of the attorney,
providing a privileged area within which he can analyze and prepare his client’s case.” In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003) (quoting United States v. Nobles,
422 U.S. 225, 238 & n.11 (1975)).
The party asserting work product protection bears the burden to show the doctrine
applies. See Conoco, Ins. v. U.S. Dep’t of Justice, 687 F.2d 724, 730 (3d Cir. 1982). Courts in
this Circuit have adopted a “two part test for ascertaining whether the documents (or things) at
issue should be protected under the [work-product doctrine].” In re Gabapentin Patent Litig., 214
F.R.D. 178, 183 (D.N.J. 2003).
The first inquiry is the “reasonable anticipation test,” which requires that the court
determine whether “litigation could reasonably have been anticipated.” In re Gabapentin, 214
F.R.D. at 183. “[T]he relevant inquiry is ‘whether in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.’” Maertin v. Armstrong World Indus., 172 F.R.D.
143, 148 (D.N.J. 1997) (quoting Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252,
1258 (3d Cir. 1993) (citing United States v. Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir.
1990))). Although the litigation need not be imminent, Rockwell, 897 F.2d at 1266, “there must
be an identifiable specific claim of impending litigation.” Maertin, 172 F.R.D. at 148 (quoting
Leonen, 135 F.R.D. at 97).
The second inquiry is whether the documents were prepared “primarily for the purpose of
litigation.” Paris, 2006 WL 1982876, at *2. “Documents prepared for other purposes that prove
useful in subsequent litigation are not attorney work-product.” In re Gabapentin, 214 F.R.D. at
184. Accordingly, documents created in the ordinary course of business, even if useful in

10

subsequent litigation, are not protected by the work-product doctrine. See Rockwell, 897 F.2d at
1265-66. Ultimately, “[e]ven where the reasonable anticipation of litigation is established,
whether the document comes within the purview of the work-product [doctrine] still depends
primarily on the reason or purpose for the documents production.” In re Gabapentin, 214 F.R.D.
at 184.
C.

The Common-Interest Doctrine

The common-interest, or community-of-interest, doctrine allows “attorneys
representing different clients with similar legal interests to share information without having to
disclose it to others.” In re Teleglobe Commc’ns Corp., 493 F.3d 345, 364 (3d Cir. 2007)
(emphasis added). If applicable, the doctrine protects communications “made between attorneys
when all members of the community share a ‘common legal interest’ in the shared
communication.” Id. at 364 (emphasis added). The common-interest doctrine is not an
independent privilege, but rather, an exception to the general rule that disclosure of a privileged
communication to a third-party waives the privilege. See, e.g., Cavallaro v. United States, 284
F.3d 236, 250 (1st Cir. 2002) (“The common interest doctrine . . . is not an independent basis for
privilege, but an exception to the general rule that the attorney-client privilege is waived when
privileged information is disclosed to a third-party.” (quotation omitted)). The degree of
common legal interest required to qualify under the doctrine is the subject of some debate,
ranging from “substantially similar” to “identical.” See, e.g., La. Mun. Police Empl. Ret. Sys. v.
Sealed Air, 253 F.R.D. 300, 309-10 (D.N.J. 2008) (substantially similar legal interests
sufficient); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974)
(identical interests required). The burden to show the privilege has not been waived, and thus,
that the doctrine applies, rests with the party resisting disclosure. See Greene, Tweed of Del.,
Inc. v. DuPont Dow Elastomers, LLC, 202 F.R.D. 418, 423 (E.D. Pa. 2001).
11

D.

Deliberative Process Privilege

The deliberative process privilege protects from disclosure “documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. Dep’t of Interior v. Klamath Water Users
Ass’n, 532 U.S. 1, 8 (2001). The purpose of the privilege is to prevent injury to the quality of
agency decisions which could result from the premature or indiscriminate disclosure of
deliberations comprising part of a process by which government decisions and policies are
formulated. Delaware Riverkeeper Network v. Delaware River Basin Com’n, 300 F.R.D. 207,
214 (D.N.J. 2014). “The privilege recognizes that were agencies forced to operate in a fishbowl,
the frank exchange of ideas and opinions would cease and the quality of administrative decisions
would consequently suffer.” Id. Accordingly, the deliberative process privilege “permits the
government to withhold documents containing confidential deliberations of law or policymaking,
reflecting opinions, recommendations or advice.” Reid v. Cumberland County, 34 F. Supp. 3d
396, 405-06 (D.N.J. 2013). The documents sought to be protected must be pre-decisions and
deliberative in nature. Delaware Riverkeeper Network, 300 F.R.D. 211.
In order for the deliberative process privilege to apply, the government must: (1) formally
claim the privilege after considering the matter; (2) provide the reasons for asserting the privilege
over the government information or documents at issue; and (3) identify and describe the
government information or documents sought to be shielded from disclosure. Id. at 211.
III.
A.

DECISION
Shipyard’s General Arguments
1.

Hoboken is Entitled to Assert the Attorney-Client Privilege

Shipyard’s first argument is Hoboken should not be able to assert the attorney-client
privilege at all because Maraziti Falcon, LLP (Hoboken’s counsel of record) was merely
12

“providing administrative or business rather than legal advice.” (Pl.’s Br. 6.) However, this
appears to be mere speculation supported by reference to a few documents Shipyard has received
in response to discovery requests that supposedly show the Maraziti firm undertaking certain
non-legal, administrative tasks.
Shipyard’s argument fails. Whether a firm is providing business or legal advice is
generally considered on a communication-by-communication basis. Shipyard’s generalized
assertion, based on the review of a few documents that Hoboken produced precisely because they
were business and not legal, is no basis for a broad finding that the Maraziti Firm was not
providing legal services in this case. Indeed, a review of the in camera documents submitted
supports the opposite.
2.

Hoboken is Entitled to Assert the Work-Product Doctrine

Shipyard next argues that Hoboken’s assertion of the work-product doctrine is improper,
across the board, because the documents for which Hoboken is asserting the work product
protection were “presumably not prepared in anticipation of this litigation,” as well as because
protection has been waived or otherwise put in issue. (Pl.’s Br. 8.)
Shipyard’s arguments again fail. That litigation had not yet begun when the
withheld documents were created is not dispositive. See In re Grand Jury, 599 F.3d at 1229
(“Indisputably, the work-product doctrine extends to material prepared or collected before
litigation actually commences.”). The pertinent inquiry is whether litigation was reasonably
anticipated. See In re Gabapentin, 214 F.R.D. at 183. This inquiry can be satisfied well in
advance of actual litigation. As the Second Circuit Court of Appeals has noted, “[i]n many
instances the expected litigation is quite concrete, notwithstanding that the events giving rise to it
have not yet occurred.” United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995).
As to waiver, work-product protection is lost only when a disclosure enables an
13

adversary to gain access to the information. See Westinghouse, 951 F.2d at 1428; Maldonado v.
New Jersey, 225 F.R.D. 120, 131 (D.N.J. 2004) (“The essential question with respect to waiver
of the work-product [doctrine] by disclosure is whether the material has been kept away from
adversaries.”). The burden of establishing waiver of the work-product doctrine falls, unlike the
attorney-client privilege, on the party seeking to establish waiver. See Maldonado, 225 F.R.D. at
132.
Any arguments about waiver of work-product or whether a document was prepared in
anticipation of litigation must necessarily be made on a document-by-document basis, and not in
the generalized way Shipyard proposes.
3.

Hoboken May Be Able to Assert the Common Interest Doctrine

Plaintiffs contend that Hoboken cannot assert the common interest doctrine and must turn
over any documents withheld on that basis because the entries either pre-date the lawsuit or
involve intervenors Fund for Better Water Front and Hudson Tea Buildings Condominium
Association, Inc., whose interests are not completely aligned with Hoboken’s.
The common-interest privilege “allows attorneys representing different clients with
similar legal interests to share information without having to disclose it to others.” In re
Teleglobe Commc’ns Corp., 493 F.3d at 364. The doctrine applies in civil and criminal cases as
well as purely transactional contexts. See In re Teleglobe, 493 F.3d at 364. The most common
statement of the degree of qualifying interest is that “the interest be identical, not similar, and be
legal, not solely commercial,” Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172
(D.S.C. 1974), the Third Circuit has not specifically adopted such a stringent approach, nor has it
been endorsed by at least one commentator. See Rice § 4:36 (“A standard of identical legal
interests is unnecessarily narrow.”). Instead, the Court of Appeals has noted that “members of a
community of interest must share at least a substantially similar legal interest.” In re Teleglobe,
14

493 F.3d at 366 (emphasis added).
The Court will not conclude, categorically and without reference to any specific
communication, that Hoboken and any third-party (such as FBW and Hudson Tea) lack a
requisite common interest. All three entities have the similar legal interest of preventing
development along the pier in Hoboken, perhaps for different reasons. That their interests are not
identically aligned does not eliminate the possibility that the common-interest doctrine could be
appropriate. See, e.g., Andritz Sprout, 174 F.R.D. at 634 (“The interests of the parties need not
be identical, any may even be adverse in some respects.”). However, any formal ruling on this
issue would require a more specific argument about a specific document in dispute.10
B.

The Seven Categories & Samples
The following are the seven categories of documents Shipyard created and for which

samples were provided. For each category, Shipyard provided generalized argument in favor of
production and against Hoboken’s claim of privilege. Hoboken’s papers do not effectively argue
any category as a whole. Instead, they select random privilege log entries and defend their
withholding of that particular document. As mentioned earlier, this disjointed process has
resulted in Shipyard arguing for the production of a category of documents and requesting the in
camera review of specific samples—while Hoboken barely responds to the category wide
arguments and ignores the samples identified by Shipyard, instead choosing their own.

10

Shipyard also argues that Hoboken cannot assert the deliberative process privilege because
it is an “executive” privilege that does not apply to Hoboken as a legislative body. (Pl.’s Br. 9-10.)
Hoboken fails to address this point. It also does not address whether this Court should recognize a
legislative privilege of any type. See, e.g., Favors v. Cuomo, 285 F.R.D. 187, 209-10 (E.D.N.Y.
2012); cf. Harris v. City of Phila., 1995 WL 350296, at *7 (E.D. Pa. 1995) (Shapiro, J.) (“The
deliberative process privilege may be asserted by decision-makers within all three branches of
government.”). None of the samples that have been selected require the Court to decide this issue
at this time. However, if Shipyard intends to withhold documents on the grounds of deliberative
process, it will be required to be specific regarding their basis for doing so.
15

CATEGORY A:
Drafts of Ordinances and Communications Related Thereto
This category includes approximately 9 privilege log entries for drafts of the Ordinances
and 199 entries for correspondence relating thereto. Generally speaking, Hoboken asserts workproduct for the Ordinance drafts and attorney-client privilege and common interest as to the
communications. Shipyard argues that Hoboken has produced some drafts of the Ordinances and
should not be permitted to cherry pick which ones they produce and those which they withhold.
It also makes a policy argument that Hoboken should not be permitted to withhold
communications touching on the Ordinances preparation because “[s]uch communications are
part of the process of open government and should not be hidden from the public even if
opposition to the ordinances were expected.” (Pl.’s Br. 17.) No legal authority for that statement
is offered. Shipyard selected the following entries from Hoboken’s privilege log as samples to
review: 9, 33, 50, 57, 62, 76, 123, 153, 188, 200, 228, 265, 343, 370, 442, and 453.
Hoboken does not respond in any depth to the category-wide arguments and its brief fails
to address the samples identified. Thus, there is really no argument offered as to why the specific
samples selected by Plaintiff have been properly withheld. Instead, Hoboken refers to a few
other documents — not selected by Plaintiffs — and explains why they are privileged. Faced
with this record, the Court has reviewed the samples submitted, and has upheld the privilege only
when facially apparent from a review of the document.

16

Log Entry

Bates Number(s)

Privilege Asserted

No. 9

HOB09849-9850

Attorney-Client

Decision
9849 is privileged. It
is an email
communication
between attorney and
client relating to
preparation of the
ordinance.
9850 is not
privileged. It is an
email communication
of an administrative
nature that does not
reflect any legal
advice.
The fact that 9850 is
part of the same
email string as 9849
is irrelevant. See
Spinello Cos., 2008
U.S. Dist LEXIS
53509, at *6 (D.N.J.
July 14, 2008).

No. 33

HOBO005047-48

Attorney-Client

5047 is not
privileged. The
communication is
between non-lawyers
and of a non-legal
nature. An attorney
is merely “cc’d” on
the email, which
appears to be for
scheduling purposes.
Entry 5048 is not
privileged. Although
Defendants’ counsel
created the email, it
is administrative in
nature and does not
involve legal advice.

17

No. 50

HOB007250
HOB014621

Attorney-Client

7250 is privileged. It
is an email between
attorney and client
that includes legal
advice.

No. 57

HOBO007383

Attorney-Client

7383 is privileged.
It is an email between
attorney and client
relating to legal
advice.

No. 62

HOB007393-7407

Attorney WorkProduct

7393-7407 are
privileged. The
document is an
attorney “marked
up”version of the
ordinance.

No. 76

HOB004937

Attorney-Client

4937 is not
privileged. The
communication is
primarily between
non-attorneys. An
attorney is merely
copied on the email.
No legal advice is
sought or received.

No. 123

HOB004852

Attorney-Client

4852 is privileged. It
is a communication
from a client to an
attorney that reflects
research and legal
advice.

18

No. 153

HOB007720-7721

Attorney-Client

7720 and 7721 are an
email chain that is
partially privileged.
The email from
counsel to client on
October 8, 2013 at
8:07 a.m. and from
client to counsel on
October 8, 2013, at
9:50 a.m. are
privileged. These
messages reflect legal
advice.
The remainder of the
email chain,
however, must be
produced.

No. 188

HOB004535-36

Attorney-Client

4535-36 are
privileged. These
communications are
between attorney and
client and reflect
legal advice.
.

No. 200

HOB004502

Attorney-Client

4502 is not
privileged.
The communication
is not between
attorney and client
and no legal advice is
included.

19

No. 228

HOB04406

Attorney-Client

4406 is not
privileged.
The communication
is not between
attorney and client
and no legal advice is
included.

No. 265

HOB04130

Deliberative Process
Privilege

4130 may be
protected depending
on if Hoboken can
articulate a basis for
the privilege.

No. 343

HOB012303

Common-Interest
Doctrine

12303 is protected.
The communication
reflects sharing of
privileged
information between
attorneys having a
common interest.

No. 370

HOB005206

Attorney-Client

5206 is privileged as
a communication
between attorney and
client regarding legal
advice relating to the
ordinance.

No. 442

HOB08936

Attorney WorkProduct and
Common Interest
Doctrine

8936 is not protected.

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The document does
not reflect the sharing
of confidential legal
advice or information
between lawyers.

No. 453

HOB08722-8737

Attorney WorkProduct and
Common Interest
Doctrine

These documents are
protected.
They reflect the
sharing of protected
information between
and among attorneys
with a common legal
interest.

CATEGORY B:
Memos prepared by Hoboken Officials
concerning the Ordinances, objections and related communications
This category includes approximately 33 privilege log entries for memos and
communications prepared by various members of the City’s Administration—primarily the
Community Planning Board Director and the Mayor—with respect to adoption of the
Ordinances. Plaintiffs primary argument is that these documents cannot be protected because the
adoption of an ordinance is supposed to be a public process. Again, this position is unsupported
by citation to legal authority. Shipyard selected the following privilege log entries as samples:
90, 140, 143, 166, 175, 178, 186, 190, 206.
Again, Hoboken does not address the specific samples selected. (Def.’s Br. 19.) Instead,
its brief cites to mostly generic case law and does not explain in detail how memos such as these
are protected. As with category A, only communications that are indisputably privileged have
been protected.

21

Log Entry

Bates Number(s)

Privilege Asserted

No. 90

HOB007445
HOB0010398-10473

Attorney-Client

10398-10472 is not
privileged. These
bates numbers refer
to an email cover
memo and a draft
ordinance sent to
multiple recipients.
There is no attorneyclient
communication.

No. 140

HOB007669

Attorney-Client

7669 is privileged.
This is an email from
attorney to client
containing legal
advice.

No. 143

HOB004763-4766

Attorney-Client

Not privileged.
Documents are a
draft memorandum;
counsel are carbon
copied but it is not
legal advice from an
attorney.

No. 166

HOB004769-4674

Attorney-Client

The email from
counsel at 4674
(10/16/13 at 10:46) is
privileged and may
be redacted as it
contains attorneyclient
communications.

No. 175

HOB007784
HOB010873HOB010876

Attorney-Client

Not privileged.
Does not contain
attorney-client
conversations.

22

Decision

No. 186

HOB004534
HOB010896

Attorney-Client

Not privileged. Does
not contain attorneyclient conversations.

No. 190

HOB004563-4565

Attorney-Client

Description in the
privilege log does not
correspond to the
documents provided
to the court in
camera. The
documents that have
been provided do not
involve an attorney
and are not
privileged.

No. 206

HOB004457

Attorney-Client

Not privileged.
Document is an intracity email among
non-lawyers that has
nothing to do with
legal advice.

CATEGORY C:
Documents/communications concerning expert reports
for the ordinances
This category includes approximately 15 privilege log entries that refer to an expert report
relating to the disputed Ordinances. Shipyard’s theory is that Hoboken was considering various
entities to prepare an expert report and has withheld communications from both. They also claim
that Hoboken has improperly withheld communications with lawyers from other firms with
whom they spoke and/or consulted. Shipyard selected entries 10, 11, 14, 21, 25, and 28 for in
camera review.
Hoboken does not address the specific samples selected. Its argument on Category C is
as follows: “Shipyard refers to the documents in Category C as documents and communications

23

concerning a proposed technical expert for the ordinances. Shipyard’s characterization of these
emails is not accurate. These emails were not made for the purpose of soliciting a technical
expert. Rather, in these emails, Hoboken attorney’s in this case were communicating with other
attorneys and Hoboken officers in order to develop legal theories for Hoboken regarding
evidentiary support for the ordinances, and as such they are protected from disclosure by
Shipyard by the attorney work-product and attorney client privileges.” (Def.’s Br. 20-21.)
Log Entry
No. 10

Bates Number

Privilege Asserted

HOB09851

Attorney-Work
Product

Decision
Protected workproduct. Attorney
research and
investigation
regarding potential
claims.
Plaintiff’s assertion
that such information
can not qualify as
work-product is not
supported by any
binding precedent
cited. Moreover, the
Court finds that
Plaintiff cannot
establish a
“substantial need” for
the production of
such information that
would trump workproduct protection.

No. 11

Attorney Work
Product

HOB09852-9853
HOB09927

24

Protected workproduct. Attorney
research and
investigation
regarding potential
claims

No. 14

Common Interest
Doctrine

HOB005121
HOB009926

Not protected.
Insufficient showing
that Defendants’
attorney and the
attorney contacted
have “substantially
similar” legal
interests to warrant
protection under the
common interest
doctrine.

No. 21

HOB005086-87
HOB009987-10026

Attorney-Client

Not attorney-client
material. There is no
attorney-client
communication.

No. 25

HOB007152

Attorney-Client

Not attorney-client
material. There is no
attorney-client
communication.

No. 28

HOB007213-7214

Attorney-Client

Not attorney-client
material. There is no
attorney-client
communication

CATEGORIES D&E:
Documents/Communications concerning City Council &
Planning Board meetings about the ordinances.
Shipyard next seeks the production of two categories of documents that concern City
Council and Planning Board meetings about the Ordinances. It claims that these documents are
part of the legislative process and must be produced. Shipyard claims that any assertions of the
deliberative process privilege fail because this is a legislative function and the deliberative
25

process privilege is executive in nature. The selected samples include the following entries: 38,
115, 121, 129, 159, 471, and 472.
Hoboken, again addressing random privilege log entries and not the samples selected,
points out two documents that fall within this category that it claims are express requests for
legal advice from a member of Hoboken’s administration to lead counsel.
Log Entry
No. 38

Bates Numbers

Privilege Asserted

HOB0010068

Attorney-Client

Decision
Privileged.
Communication from
attorney to client
regarding litigation.

No. 115

HOB004841

Attorney-Client

Not privileged.
Communication
between non-lawyers
that does not discuss
or disclose counsel’s
legal advice.

No. 121

HOB004844

Attorney-Client

Privileged.
Communication
between attorney and
client relating to
litigation.

No. 129

HOB004832-4833

Attorney-Client

26

Not privileged.
However, this
appears to be a
colloquial
communication that
is plainly not relevant
to claims or defenses.

No. 159

HOB004743

Attorney-Client

Not privileged.
Does not contain
attorney-client
communications.

No. 471

HOB0018140-45

Deliberative Process
Privilege

Hoboken has thus far
not established that
such a document
comes within the
deliberative process
privilege.

No. 472

HOB0018146-50

Deliberative Process
Privilege

Hoboken has thus far
not established that
such a document
comes within the
deliberative process
privilege.

CATEGORY F:
Communications concerning Hoboken’s Community Rating System Application
Shipyard seeks the production of privilege log entries that appear to relate to Hoboken’s
application for participation in FEMA’s Community Rating System. Shipyard claims this was an
issue during hearings on the ordinances. From reviewing documents that have already been
produced and which Shipyard believes are similar to those in this category, it speculates that the
documents being withheld are administrative and concern how things should be done and when,
none of which would warrant protection. Shipyard identifies entries 100, 102, 202, and 437 as
samples for in camera review.
Again, Hoboken does not address the particular samples identified, instead stating why it
believes that other entries, not selected, are protected by the attorney-client privilege as direct

27

communications between counsel in this case and client.

Log Entry

Bates No.

Privilege Asserted

Decision

No. 100

HOB0010502
HOB0010510

Attorney-Client

Protected. Attorney
and client
communication.

No. 102

HOB007542

Attorney-Client

Protected. Attorney
and client
communication.

No. 202

HOB004471-73
HOB007856-58
HOB011052
HOB011054

Attorney-Client

Not attorney-client
material. There is no
attorney-client
communication

No. 437

HOB005164
HOB008673
HOB009016-9017

Attorney-Client

Protected. Attorney
and client
communication.

CATEGORY G:
Communications concerning State pier legislation
Hoboken has withheld certain documents that it claims include “internal discussion,
analysis, and suggestions regarding pending legislation,” which are “squarely within the context
of the deliberative materials, and therefore properly withheld.” Plaintiff claims that the
deliberative process privilege does not apply to internal Hoboken deliberations. It has requested
in camera review of two samples—entries 4 and 6. Hoboken does not address either sample in
its brief.

28

Log Entry
4

Bates No.

Privilege Asserted

Decision

Deliberative Process

Not Attorney Client
protected.

HOB018087-18103

Attorney-Client
The Court is unable
to decide whether the
deliberative process
privilege applies on
the scant record
presented.
6

Deliberative Process

Not Attorney Client
protected.

Attorney-Client

IV.

HOB0178117180128

The Court is unable
to decide whether the
deliberative process
privilege applies on
the scant record
presented.

INSTRUCTIONS TO THE PARTIES
At this point, the parties are directed to proceed as follows.
One, any documents that have been determined to be improperly withheld should be

turned over within 15 days.
Two, the parties should confer in good faith and attempt to resolve any remaining
disputes using the representational rulings made herein. The parties should immediately advise
the Court of any unresolvable problem.
Three, the parties are to immediately meet and confer regarding a schedule for the
remainder of the case. A proposed schedule is to be submitted within 10 days.

29

V.

CONCLUSION
For the reasons stated above, Shipyard’s informal motion to compel is GRANTED IN

PART AND DENIED IN PART.

s/Mark Falk
MARK FALK
United States Magistrate Judge

DATED: August 3, 2015

30