BARRON et al v. STATE OF NEW JERSEY et al
OPINION. Signed by Chief Mag. Judge Mark Falk on 11/2/2020. (lag, )
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 1 of 8 PageID: 754
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOESPH L. BARRON, et al.
Civil Action No. 17-735 (WJM)
STATE OF NEW JERSEY, et al.,
Before the Court is Plaintiffs’ motion to compel. (CM/ECF No. 75.) The motion
is opposed. The motion is decided on the papers. Fed.R.Civ.P. 78(b). For the reasons set
forth below, the motion is denied.
This is a civil rights action arising out of the alleged wrongful arrest of Plaintiffs
Joseph Barron, Janine Watts and Tammy Godfrey-Khalil. Plaintiffs were arrested
following a sting operation carried out by the New Jersey State Police, the Essex County
Prosecutor, and the Irvington Township Police Department which targeted suspected
drug-dealing activities in an apartment in Irvington, New Jersey. Plaintiffs allege that
New Jersey State Trooper Reifler (“Reifler”) provided false statements that enabled the
investigation, and supplied false grand jury testimony, all of which led to the wrongful
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 2 of 8 PageID: 755
arrest, prosecution and ultimate incarceration of Plaintiffs. As a result, Barron was
incarcerated for four months, Godfrey-Khalil for six months and Watts for two and a half
weeks. The government ultimately dismissed the charges.
Plaintiffs filed a Complaint asserting civil rights and tort claims against the State
of New Jersey and several of its officers, including Reifler, the Essex County Prosecutor,
the Township of Irvington and two of its officers. Following dispositive motion practice 1
and a stipulation of dismissal as to some defendants, the only claims which remain are
Section 1983 claims for false arrest, wrongful incarceration, and malicious prosecution
against Reifler in his individual capacity.
Following the opening of discovery, Plaintiffs served a subpoena on the New
Jersey State Police (“NJSP”). NJSP responded to the subpoena by producing the Internal
Investigation 2016-0263 (“IA file”) related to the incident in question, with the exception
of two documents contained therein: (1) Allegations & Conclusions (“A&C” or
“Allegations & Conclusions”), and (2) Review Sheets. Plaintiffs demanded production
of the A&C and Review sheets stating that they are probative to liability in this case.
NJSP refused to produce the documents asserting that they are privileged. After an
attempt by the Court to informally resolve the parties’ dispute over the subpoenaed
documents and following Counsel conferring on the matter, the parties remained at an
impasse. The parties submitted briefing on the issue.
Section 1983 claims (Supervisory Official Liability) against Defendant Superintendent Rick Fuentes were
dismissed without prejudice.
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 3 of 8 PageID: 756
Defendants assert that the A&C and the Review Sheets are protected by the
deliberative process privilege 2 and that even after balancing Plaintiffs’ need for the
information, the documents should remain protected. To this end, NJSP argues that the
A&C and the Review Sheets are pre-decisional and deliberative. NJSP describes in detail
those segments of the IA file as follows:
The [NJSP’s] . . . Internal Investigations Bureau . . . investigate[s]
allegations of misconduct made against NJSP personnel. The
investigations determine whether an allegation against the subject Trooper
is accurate and, if so, whether the Trooper’s conduct violates any state or
federal law, or any rule or regulation applicable to the members of the
NJSP. After an investigation is completed, the investigating officer
summarizes the allegations and conclusions generated by the investigation,
and provides recommendations as to the merit of the complaint
(“Allegations & Conclusions”).
Thereafter, the investigator’s completed investigation is forwarded through
the Internal Investigations Bureau chain of command for independent
review by supervising members . . . . The reviewing officers do not conduct
an independent factual investigation. Rather, their role is to ensure the
completeness of the investigation and offer their pre-decisional opinions,
based on their training and experience (“Review Sheets”). The Major and
commanding officer . . . then formulates a recommendation, supported by
charges and specifications prepared by his staff, that is then submitted to
the NJSP Superintendent to determine whether to pursue any disciplinary
(NJSP Br. at 5-6.)
NJSP contends that A&C and Review Sheets are a post-investigation summary
and evaluation of evidence gathered during the investigation, and the investigating
NJSP also asserts the self-critical privilege as a basis for withholding the documents. As will be set forth below,
because the Court finds that the withheld documents are protected by the deliberative process privilege, it need not
address NJSP’s assertion of the self-critical privilege.
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 4 of 8 PageID: 757
Trooper’s recommendation as to the merit of the IA complaint. NJSP argues that the
A&C and Review Sheets are precisely the pre-decisional documents that the deliberative
process privilege protects, noting that neither the A&C nor Review Sheets offer any
independent evidentiary value to Plaintiffs’ claims in this case. NJSP contends that the
chilling effect on the candor of the reviewing officers should such documents be
disclosed outweighs Plaintiffs’ need for the discovery in this case. (NJSP Br. at 12.)
Plaintiffs seek an Order compelling NJSP to produce the A&C and Review sheets
asserting several arguments in support. Plaintiffs maintain that their need for the
information outweighs NJSP’s claim of privilege. Noting that discovery provided to date
suggests that Reifler was disciplined for “problems with his reporting,” Plaintiffs argue
that the “reason this information is critical is because it may establish the liability of the
officer.” (Pl.’s Br. at 2.) Plaintiffs claim that the “findings of misconduct could not be
more probative on [Reifler’s] liability, his knowledge of police procedure and violations
thereof, bearing directly on deliberate indifference.” (Pl.’s Br. at 10.) To this end,
Plaintiffs contend that “[e]xpert review on policies violated would be critical to the
evaluation of liability.” (Id.) Plaintiffs argue that the documents may be similarly
relevant to their claim for supervisory responsibility, which was dismissed, without
prejudice, upon dispositive motion practice.
The deliberative process privilege “permits the government to withhold documents
containing ‘confidential deliberations of law or policymaking, reflecting opinions,
recommendations or advice.’” Redland Soccer Club, Inc. v. Dep’t of Army of U.S., 55
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 5 of 8 PageID: 758
F.3d 827, 853 (3d Cir. 1995) (quoting In re Grand Jury, 821 F.2d 946, 959 (3d Cir.
1987)). 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.’” Redland Soccer Club, 55 F.3d at 854 (quotations
omitted). It “‘protects agency documents that are both predecisional and deliberative.’”
Abdelfattah v. U.S. Dept. of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007) (quotations
In order for the privilege to apply, the governmental entity asserting the privilege
must show that the documents sought are “‘predecisional and deliberative.’” Abdelfattah
v. U.S. Dept. of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007) (quotations omitted).
In order to be predecisional, a document must concern an anticipated agency decision and
have been generated prior to the actual decision being reached. See N.L.R.B. v. Sears,
Roebuck & Co., 421 U.S. 132, 151-52 (1975); see also United States v. Pechiney Plastics
Packaging, Inc., No. 09-5692, 2013 WL 1163514, at *13 (D.N.J. Mar. 19, 2013). To be
deliberative, a document must reflect “‘advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies
are formulated.’” N.L.R.B., 421 U.S. 150. In other words, the material must “reflect
the give and take of the consultative process.” Bayliss v. New Jersey State Police,No. 11890, 2013 WL 5423039, at 4 (D.N.J. Sept. 20, 2013) (quotations omitted).
The privilege is not absolute. See Redland Soccer Club, 55 F.3d at 854. Once the
government establishes that the deliberative process privilege applies, the Court performs
a balancing test to weigh the benefit of preserving the integrity of internal governmental
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 6 of 8 PageID: 759
deliberations against the need for free and open discovery.” U.S. v. Ernstoff, 183 F.R.D.
148, 152 (D.N.J. 1998). “The party seeking discovery bears the burden of showing that
its need for the documents outweighs the government’s interest.” Redland Soccer Club,
55 F.3d at 854. The Court considers: “(i) the relevance of the evidence sought to be
protected; (ii) the availability of other evidence; (iii) the ‘seriousness’ of the litigation and
the issues involved; (iv) the role of the government in the litigation; [and] (v) the
possibility of future timidity by government employees who will be forced to recognize
that their secrets are voiable.” Id. (quotations omitted).
The NJSP has satisfied the formal procedural requirements for establishing the
deliberative process privilege. See Ernstoff, 183 F.R.D. at 152. It issued a formal claim
of privilege through Major James A. Parker, Commanding Officer of the NJSP Office of
Professional Standards. 3 It identified and described the documents at issue and stated
precise and certain reasons for asserting confidentiality over them. See id. at 153.
The NJSP has also demonstrated a prima facie case for the application of the
deliberative process privilege to the A&C and Review Sheets here. The NJSP has
established that the information being withheld is predecisional and deliberative. The
withheld documents were generated for the purpose of ultimately determining whether
Reifler’s conduct violated any state or federal law, or any rule or regulation applicable to
Initially, Plaintiffs argued that NJSP failed to satisfy the procedural requirements for asserting privilege because it
did not submit an affidavit from a responsible NJSP official making a formal claim of privilege and providing
precise reasons for asserting it. With the Court’s permission, NJSP supplemented its submission with the
Certification of Major James A. Parker.
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 7 of 8 PageID: 760
members of the NJSP, and whether discipline consequently should be imposed.
(Certification of Major James A. Parker (“Parker Certif.”) at ¶ 3.) As explained in the
certification of Major Parker, the investigating officer prepares the Allegations and
Conclusions portion of the internal investigation file which are “a reflection of an internal
deliberative process of applying the facts adduced through the investigatory process to
the allegations made, and coming to an initial conclusion as to whether the trooper has in
fact committed a violation.” (Parker Certif. at ¶¶ 4-5.) See In re U.S., 321 Fed. Appx.
953, 959 (Fed. Cir. 2009) (“factual information that itself reveals the deliberative process
and cannot be severed from the deliberative context is protected.”) Supervising members
in the OPS chain of command review the investigating officer’s findings and memorialize
their opinions and recommendations as to whether to impose discipline in the Review
Sheets. (Parker Certif. at ¶¶ 8-9.) Major Parker then considers the complete file,
including the Review Sheets and the Allegations & Conclusions, and formulates a
recommendation to the Superintendent of the State Police, the ultimate decision maker,
who renders a decision on any disciplinary action. (Parker Certif. at ¶ 11.) The contents
of the Allegations and Conclusions and the Review Sheets are precisely the type of
internal, advisory communications contemplated by the deliberative process privilege. 4
See Bayliss v. New Jersey State Police, 622 Fed. Appx. 182, 185 (3d Cir. 2015) (finding
The need for confidentiality is underscored by Major Parker. He states that he “rel[ies] heavily upon the candid
summaries and evaluations of [his] command staff before submitting [his] recommendation to the Superintendent”
and that the disclosure of A&C and Review Sheets “would have a chilling effect on the candor of the reviewing
officers.” (Parker Certif. at ¶¶ 12-13.) Major Park underscores that “to deny the Superintendent the free flow of
advice from his experienced supervisory personnel undermines the public interest, would unreasonably and
unnecessarily restrict the orderly functioning of the NJSP, and negatively affect the administration of the trooper
disciplinary system.” (Parker Certif. at ¶ 14.)
Case 2:17-cv-00735-WJM-MF Document 83 Filed 11/02/20 Page 8 of 8 PageID: 761
NJSP’s Review Sheets protected by the deliberative process privilege).
Plaintiffs have not demonstrated that their need for the withheld documents
outweighs the NJSP’s interest in maintaining their confidentiality. The A&C and Review
Sheets contain no new factual information beyond what is contained in the investigation
report itself. (Parker Certif. at ¶ 13.) NJSP has already provided Plaintiff with the
investigation report which presumably contains the identify of the investigating officer,
the identities and statements of all witnesses and all of the facts established from the
investigation and relied upon by NJSP Office of Professional Standards in making its
disciplinary decision. Plaintiffs can depose witnesses regarding information gleaned
from the investigation report. Moreover, the A&C and Review Sheets have marginal, if
any, relevance to Plaintiffs’ claims for false arrest, wrongful incarceration, and malicious
prosecution against Reifler in his individual capacity. To the extent Plaintiffs argue that
the information is relevant to their supervisory liability claims, those claims have been
dismissed. See Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 204 (3d Cir. 2006) (The
purpose of discovery is to uncover evidence of the facts pleaded in the Complaint, not ‘to
find a cause of action.”)
For the reasons set forth above, Plaintiffs’ motion to compel is denied.
Dated: November 2, 2020
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?