BAYLISS et al v. TROOPER R. WAMBOLD et al

Filing 119

MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 9/16/2014. (jjc)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
JAMES BAYLISS,
:
:
Plaintiff,
:
:
v.
:
:
NEW JERSEY STATE POLICE, et al., :
:
Defendants.
:
:

CIVIL ACTION NO. 11-890 (MLC)
MEMORANDUM OPINION

THE DEFENDANT Trooper Richard J. Wambold, Jr., appeals from two orders of
the Magistrate Judge, entered September 20, 2013 (“September 2013 Order”) and
December 9, 2013 (“December 2013 Order”), respectively. (See dkt. entry no. 98, 9-2013 Mag. Judge Op. & Order; dkt. entry no. 112, 12-9-13 Mag. Judge Order; dkt. entry no.
115, Notice of Appeal.) The Court will affirm the September 2013 Order and the
December 2013 Order.
THE PLAINTIFF, James Bayliss, brought this action to recover damages under
42 U.S.C. § 1983 related to his arrest by New Jersey state troopers. (See dkt. entry no.
48, 3d Am. Compl.) The defendants are listed as: New Jersey State Police (“NJSP”);
Wambold; and Trooper Keith Juckett. (Id.)
WAMBOLD moved before the Magistrate Judge in December 2012 for leave to:
(1) amend his answer; and (2) file counterclaims, cross-claims, and a third-party complaint
against NJSP and the Office of the Attorney General of New Jersey (“NJOAG”). (See

dkt. entry no. 59.) Wambold argued in support that: (1) NJSP had “charged . . . Wambold
with violations of [NJSP]’s rules and regulations arising out of the . . . arrest of Bayliss
including allegations that Wambold used excessive force”; (2) the NJOAG has refused to
defend and indemnify him as to the claims brought by Bayliss, thereby forcing him to
initiate state proceedings to compel NJOAG to reverse that refusal; and (3) he sought to
allege that NJSP and NJOAG violated, inter alia, his procedural due process rights in
violation of 42 U.S.C. § 1983 and “pursuant to N.J.S.A. 53:1-33 (the Forty-Five Day
Rule)”. (Dkt. entry no. 59-1, Wambold Br. at 2-3, 12.) Separate state proceedings
concerning NJOAG’s refusal to defend and indemnify Wambold and the disciplinary
charges against Wambold appear to be ongoing. (See dkt. entry no. 68, NJSP Letter at 12.; dkt. entry no. 82, NJSP Br. at 2, 5, 13-14; dkt. entry no. 83-2, Wambold Certification
filed in New Jersey Appellate Division (concerning request for defense and
indemnification); dkt. entry no. 104, Wambold Letter at 2 (referring to his “State Court
matters”); dkt. entry no. 108, Wambold Br. at 3-4 (same); dkt. entry no. 115-1, Wambold
Br. at 24 (suggesting ramifications if Wambold “were . . . found to be guilty of
administrative charges related to the Bayliss arrest”).)
TWO MONTHS AFTER Wambold moved to amend, and while that motion was
still pending, the State Troopers Fraternal Association of N.J., Inc. (“STFA”) brought a
separate action in federal court (“STFA Action”) against the State of New Jersey and the
NJSP Superintendent seeking to enjoin them from investigating or disciplining a separate
trooper for disclosing confidential documents — i.e., a “Supervisory Review Sheet”
2

drafted by the NJSP concerning its investigation of the conduct of Juckett and Wambold
when arresting Bayliss — to counsel for Juckett and Wambold. See D.N.J. No. 13-1065,
dkt. entry no. 37, 12-11-13 Mem. & Order.
NJSP separately moved before the Magistrate Judge in March 2013 to “compel[]
the return of documents inadvertently produced, and an identification of all those to
whom the documents at issue were disseminated (the ‘Clawback Motion’)”. (9-20-13
Mag. Judge Op. & Order at 1; see dkt. entry no. 75, NJSP Mot.)
WHILE Wambold’s motion and NJSP’s Clawback Motion were still pending,
NJSP advised the Magistrate Judge that “we have settled this matter between the Plaintiff
and all defendants.” (Dkt. entry no. 90, NJSP Letter at 1.) The plaintiff also advised the
Magistrate Judge “that this matter has been settled”. (Dkt. entry no. 91, 8-21-13 Pl. Letter
at 1.) Wambold further advised that “it appears that the State reached a monetary
settlement with Plaintiff for which, based upon a memorandum [counsel is] in receipt of
today, releases . . . Wambold”. (Dkt. entry no. 92, 8-21-13 Wambold Letter at 1; see also
dkt. entry no. 105, 10-21-13 Juckett Letter at 1 (stating “settlement check was delivered
to counsel for the plaintiff”, and “no further action needs to be taken with respect to the
consummation of the settlement between plaintiff and defendants regarding plaintiff’s
claims”, and thus “[t]he action filed by plaintiff against all defendants should be marked
dismissed with prejudice”).)
THE MAGISTRATE JUDGE thus terminated Wambold’s motion to amend in
August 2013. (See dkt. entry no. 93, 8-29-13 Order.) The Court will now quote from the
3

Magistrate Judge’s thorough discussion of NJSP’s Clawback Motion. In the September
2013 Order, the Magistrate Judge granted the Clawback Motion, and ordered Wambold to
return the documents at issue to NJSP and “to identify any individuals to whom the
[documents] were disseminated.” (9-20-13 Mag. Judge Op. & Order at 15.)
. . . NJSP raised the fact that the proposed [third] amended [complaint]
contained references and quotes from confidential documents that it had not
produced, referred to as the State Police Review Sheets (the “Review Sheets”).
There was discussion as to how the documents had come into the possession
of Wambold’s counsel. The undersigned instructed counsel to have further
discussion on the issue in an effort to reach a resolution with regard to the use
or return of those documents. In the interim, the parties were instructed not to
further disseminate the documents at issue.
On November 7, 2012, Bayliss filed the Third Amended Complaint. Shortly
thereafter, the Court conducted a status conference on November 19, 2012.
Because the Third Amended Complaint appeared to contain information from
the Review Sheets, as quoted in the proposed amendment Wambold’s counsel
had circulated earlier, the Third Amended Complaint was placed under
temporary seal. In the Order dated November 27, 2012, counsel were
instructed to “meet and confer regarding the confidentiality issues arising from
the amended answer and determine how to address these issues prior to the
amended answer being electronically filed.”
...
The issue before the Court is whether the Review Sheets must be returned to
the State based upon an inadvertent production of documents protected by the
deliberative process privilege. Fed. R. Civ. P. 26(b)(5)(B) provides in relevant
part:
Information Produced. If information produced in discovery is subject to
a claim of privilege . . . the party making the claim may notify any party
that received the information of the claim and the basis for it. After
being notified, a party must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose the
4

information until the claim is resolved; must take reasonable steps to
retrieve the information if the party disclosed it before being notified;
and may promptly present the information to the court under seal for a
determination of the claim. The producing party must preserve the
information until the claim is resolved.
In determining whether documents that have been inadvertently produced
must be returned, courts utilize a two-step process: first, the court must
determine whether the documents at issue are in fact privileged. See Peterson
v. Bernardi, 262 F.R.D. 424, 427 (D.N.J. 2009). If the documents are found to
be privileged, the court must then decide whether the producing party waived
that privilege. Id.
Fed. R. Evid. 502(b) governs such waiver in a federal proceeding if the
documents are the subject of the attorney-client privilege or work product
doctrine. The rule does not, however, specifically reference the deliberative
process privilege. At least one other federal court has, nevertheless, looked to
Rule 502 for guidance in determining the standard for the return of inadvertently
produced documents protected by the deliberative process privilege. Sikorsky
Aircraft Corp. v. United States, 106 Fed. Cl. 571, 582-83. (Fed. Cl. 2012)
(quoting Tigue v. United States Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002)
(noting that the deliberative process privilege is a “sub-species of work-product
privilege”)). Because clear parallels exist between the policies sought to be
fostered by the qualified privileges afforded attorney work-product and the
deliberative process, this Court will also look to Rule 502 for guidance.
Under Rule 502, once it has been established that the documents at issue are
privileged, the party seeking their return must satisfy the three prongs of Rule
502(b) to avoid a waiver: (1) the disclosure was in fact inadvertent; (2) the
party took reasonable steps to protect the confidential information from
disclosure; and (3) once the disclosure took place, the holder of the privilege
acted promptly to secure the return of the documents.
In this case, the threshold issue of whether the documents at issue are
confidential depends upon the application of the deliberative process privilege.
The deliberative process privilege is the most frequently invoked form of
executive privilege. In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
5

The purpose of the privilege is to protect the quality of government
decisionmaking by “prevent[ing] injury to the quality of agency decisions
which could result from premature or indiscriminate disclosure” of
“deliberations comprising part of a process by which government decisions
and policies are formulated.” Resident Advisory Board v. Rizzo, 97 F.R.D.
749, 751 (E.D. Pa. 1983); see also National Labor Relations Board v. Sears,
Roebuck & Co. (“NLRB”), 421 U.S. 132, 150 (1975); Conoco Inc. v. United
States Dep’t of Justice, 687 F.2d 724, 727 (3d Cir. 1982). 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.” First Eastern Corp. v. Mainwaring, 21
F.3d 465, 468 (D.C. Cir. 1994) (quotations and internal ellipses omitted).
That said, “the deliberative process privilege, like other executive privileges,
should be narrowly construed.” Redland Soccer Club, Inc. v. Dep’t of Army
of U.S., 55 F.3d 827, 856 (3d Cir. 1995) (quoting Coastal States Gas Corp. v.
Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)). Because the privilege
does not protect all communications made by government officials, the court
must initially determine whether the material the government seeks to protect
comprises part of a process by which a government agency formed a decision
or policy. NLRB, 421 U.S. at 150. The initial burden of establishing whether
the deliberative process privilege applies is on the government. Redland, 55
F.3d at 854.
Accordingly, in the first instance, the court must determine whether the
government has established a prima facie case that the deliberative process
privilege applies. United States v. Ernstoff, 183 F.R.D. 148, 152 (D.N.J.
1998). To do so, the government must initially show that the material sought
to be protected is pre-decisional and deliberative. Abdelfattah v. United States
Dep’t of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007). In order to be
pre-decisional, the document in question “must concern an anticipated agency
decision and have been generated prior to the actual decision being reached; it
cannot involve a communication concerning the decision made after the
decision has already been adopted.” United States v. Pechiney Plastics
Packaging, Inc., No. 09-5692, 2013 WL 1163514, at *13 (D.N.J. March 19,
2013). Further, to be deliberative, a document must reflect “advisory
6

opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.” NLRB, 421 U.S.
at 151-52. In other words, the material must “reflect[] the give and take of the
consultative process.” New Jersey v. RPI Energy Mid-Atlantic Power
Holdings, LLC, No. 07-5298, 2013 WL 272763, at *1 (E.D. Pa. Jan. 24, 2013)
(citing Rizzo, 97 F.R.D. at 753). In addition, to the extent that the documents
reflect “personal opinions of the writer rather than the policy of the agency,”
such documents are protected by the privilege since disclosure “would
inaccurately reflect or prematurely disclose the views of the agency, suggesting
as agency position that which is as yet only a personal position.” Coastal
States Gas Corp.[, 617 F.2d at 866].
Because the privilege extends only to deliberative documents, it does not
typically apply to documents reflecting “compiled factual material or purely
factual material contained in deliberative memoranda and severable from its
context.” Environmental Protection Agency v. Mink, 410 U.S. 73, 88 (1973).
However, “factual information that itself reveals the deliberative process and
cannot be severed from the deliberative context is protected.” In re U.S., 321
Fed. Appx. 953, 959 (Fed. Cir. 2009). In deciding whether certain material is
deliberative, “[c]ourts focus less on the nature of the materials sought and
more on the effect of the materials’ release: the key question in [such] cases
became whether the disclosure of materials would expose an agency’s
decisionmaking process in such a way as to discourage candid discussion
within the agency and thereby undermine the agency’s ability to perform its
functions.” Id. (quoting Dudman Commc’ns v. Dep’t of the Air Force, 815
F.2d 1565, 1568 (D.C. Cir.1987)).
Once the government satisfies these threshold requirements, the deliberative
process privilege is applicable. The court’s inquiry, however, does not end
there because the privilege is not absolute. Redland, 55 F.3d at 854. Instead,
once the agency demonstrates that the privilege applies, the party seeking
discovery has the opportunity to make a showing of sufficient need for the
otherwise privileged material. Rizzo, 97 F.R.D. at 753. In that regard, the
court must balance the need for the documents against the reasons for
confidentiality asserted by the government. In conducting this balancing test,
a court should consider: (1) the relevance of the evidence sought; (2) the
7

availability of other evidence; (3) the seriousness of the litigation and issues
involved; (4) the role of the government in the litigation; and (5) the potential
for inhibited candor by government employees resulting from such disclosure.
Redland, 55 F.3d at 854.
...
The State contends that the Review Sheets are subject to the protections of the
deliberative process privilege. In so arguing, the State relies in large part on
the Certification of Major David C. Jones, the Commanding Officer of the
NJSP Office of Professional Standards (the “OPS”). In his Certification,
Major Jones sets forth in detail the process by which the OPS conducts
internal investigations of alleged misconduct. As Major Jones explains, an
investigation into alleged misconduct by a trooper is performed by an
investigating officer. The investigating officer prepares a summary of the
allegations and the conclusions reached. The investigating officer’s completed
investigation, the summary of that investigation, and the Review Sheets are
forwarded through the OPS chain of command for their independent review by
supervising members of Major Jones’s command staff. The supervising
command staff members do not conduct their own independent factual
investigations. Instead, the command staff members complete the Review
Sheets, offering their opinions on the investigation. After receipt of the
investigation, the summary, and the completed Review Sheets, Major Jones
formulates a recommendation for the Superintendent of the [NJSP]. The
Superintendent renders a decision with respect to proposed disciplinary action.
Major Jones asserts that he “rel[ies] heavily upon the candid evaluations of
[his] staff before submitting [his] recommendation to the Superintendent.”
Disclosure of Review Sheets “would necessarily have a chilling effect on the
candor of the reviewing officers,” insofar as “an officer might be unwilling to
share a ‘gut feeling’ or some other misgiving, if he knows he might be called
upon to justify [it] in a deposition or trial.” Major Jones avers that “deny[ing]
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.” Major Jones also
asserts that the disclosure of the Review Sheets in this case is being
8

investigated by OPS and that it was contrary to the rules and regulations of the
NJSP, which prohibit unauthorized disclosure or dissemination of non-public
information received or acquired by virtue of members’ official duties.
Indeed, such disclosure is a disciplinary offense.
The State has asserted, through Major Jones as the head of OPS, a formal
claim of privilege over a specific group of documents: the Review Sheets
prepared within that department as part of the investigation into Wambold’s
alleged use of excessive force with respect to Plaintiff. Major Jones’s
Certification has also set forth a harm to the public interest—a chilling of the
candor he relies upon from his reviewing officers and the subsequent
deprivation of advice to the Superintendent—that would occur should the
Review Sheets not be returned.
The State also argues that the Review Sheets are both pre-decisional and
deliberative. With respect to the pre-decisional prong, the State has shown that
the Review Sheets are prepared by senior members of OPS command staff and
forwarded to the head of OPS for consideration prior to his recommendation to
the Superintendent. With respect to the deliberative prong, the State has
likewise shown that the Review Sheets consist of commentary provided by
individual OPS command staff members to assist the head of OPS in his
efforts to advise the Superintendent. The contents of the Review Sheets
therefore seem to fall squarely within the sort of interior, advisory
communications contemplated by the deliberative process privilege case law.
Wambold argues in the first instance that the Review Sheets cannot be
privileged because the State actually agreed to represent Wambold in defense
of the action brought by Bayliss. Essentially, Wambold contends that the
Review Sheets are part of the State’s file with regard to that representation and
therefore should have been turned over to new counsel when the State
withdrew from representation.
Wambold further contends that the Review Sheets are neither pre-decisional
nor deliberative. He points out that the Review Sheets were dated before the
first NJSP decision, in which it was decided to defend and indemnify
Wambold, but that the NJSP later changed its mind, finding that Wambold had
in fact engaged in the use of excessive force. Thus, Wambold contends, there
were two final decisions made by the NJSP.
9

As a preliminary matter, the Court finds it is reasonable to expect that making
the Review Sheets public would discourage OPS command staff members
from offering their candid assessment of future cases, to the detriment of its
investigations. Furthermore, the Court finds that a distinction must be drawn
between the State’s role in investigating the allegations of wrongdoing, which
was done by the NJSP OPS, and the prior representation of Wambold by the
New Jersey Office of the Attorney General. That the Attorney General’s
office once represented Wambold in this matter does not mean that otherwise
confidential documents of the NJSP OPS are no longer privileged and must be
turned over.
In addition, insofar as the Review Sheets precede both the OPS
recommendation and the Superintendent’s decision, the Review Sheets are
pre-decisional. The fact that the NJSP changed its position with regard to the
charges against Wambold does not alter this conclusion. The Court therefore
finds that the State has articulated a prima facie case for the application of the
deliberative process privilege to the Review Sheets in this case.
...
[T]he deliberative process privilege is not an absolute one. Even once it has
been found to apply, a party opposing the privilege is entitled to an opportunity
to overcome the privilege by showing sufficient need. The Court must balance
the competing interests [and] consider at least the following: (1) the relevance
of the evidence sought to be protected; (2) the availability of other evidence;
(3) the seriousness of the litigation; (4) the role of the government in the
litigation; and (5) the potential for inhibited candor by government employees
resulting from such disclosure. Redland, 55 F.3d at 854 (quoting First Eastern
Corp. v. Mainwaring, 21 F.3d 465, 468 n.5 (D.C. Cir. 1994)).
The NJSP argues that the Review Sheets have no evidentiary significance
because the commenting officers performed no separate investigation, instead
relying on the investigating officer’s report and recommendation. As such,
says the NJSP, the Review Sheets have no additional facts and constitute mere
“lay opinions,” carrying no evidential weight under Fed. R. Evid. 701.
In contrast, Wambold argues that the Review Sheets are “highly relevant to the
within matter because the State’s only way to avoid providing Wambold with
10

a defense in the Bayliss litigation is to assert that Wambold engaged in
misconduct.” Wambold goes on to argue in great detail about the State’s
initial agreement to defend and indemnify him and its later decision to
withdraw that defense and indemnification. Thus, much of the argument
centers on whether the State is “liable to pay for Wambold’s defense fees and
costs,” and the conflict arising from the State’s failure to do so.
In so arguing, Wambold mistakes what is currently at issue in this case. As
currently [pled], the sole issue before this Court is whether Bayliss has
asserted a cognizable excessive force claim against the various Defendants.
While Wambold contends that the Review Sheets are relevant to his claim
against the NJSP, that claim is not [currently] before the Court. It was the
subject of a motion for leave to amend, which was hotly contested given that
the same claim is the subject of a pending state proceeding. That motion was
terminated in light of the settlement between Bayliss and all Defendants and
its impact on this Court’s jurisdiction. While Wambold has indicated that he
may still seek to renew and rebrief his Motion to Amend, the claims he would
assert through that amendment are not currently part of the case nor is there
any certainty that they ever will be. Accordingly, they cannot factor into the
Court’s consideration of relevance with regard to the Review Sheets.
Indeed, the Court finds that the Review Sheets have no relevance to the issues
raised in the Bayliss Complaint, i.e., whether or not Bayliss can recover on his
claims of excessive force. Because the Review Sheets are not relevant, the
Court finds that the remaining factors outlined by the Third Circuit in Redland
weigh in favor of the return of the Review Sheets to the NJSP. The State has
made a strong argument as to the harm that it would suffer if these internal
deliberative documents were released, particularly with regard to the chilling
effect on the candor of commenting officers if they knew their opinions would
be made public, whereas there has been no showing that these documents are
even relevant to the issues in this case.
For the reasons set forth above, the Court finds that the deliberative process
privilege applies to the Review Sheets in this case. The Court next considers
whether the Review Sheets should be returned to the State in light of the
traditional three-prong test set forth in Rule 502(b).
...
11

The submissions reflect considerable confusion as to how the Review Sheets
were originally released. The NJSP speculates that they were inadvertently
provided to a different trooper undergoing disciplinary action in an unrelated
matter. According to Wambold’s counsel, the Review Sheets were attached to
an email sent to an attorney representing another trooper in an unrelated
matter. Vincent J. Nuzzi, Esq., who represents Juckett with regard to
disciplinary charges filed against him, also put in a certification, in which he
discusses his efforts to obtain certain records relating to his client and the fact
that those documents may have been inadvertently forwarded to another
attorney, who then sent them to Christopher Burgos, president of the New
Jersey State Troopers Fraternal Association.
While it remains unclear how the documents made it from the NJSP into
Wambold’s possession, one thing is clear: the disclosure was without
authorization and is the subject of an investigation being conducted by the
OPS. It was also a violation of the rules and regulations of the NJSP, and is a
disciplinary offense. The Court is therefore satisfied that the NJSP disclosure
was inadvertent.
Wambold claims that the NJSP failed to take reasonable steps to prevent the
disclosure, including failing to mark the Review Sheets with a confidential
designation. Based on their treatment within the NJSP, however, the Review
Sheets do not appear to be a class of documents ever intended to be released
outside the department. As such, they would not necessarily be marked as
confidential unless and until there was the intention to produce them. Indeed,
as noted above, dissemination is considered a violation of the rules and
regulations that govern the State Police, and is an offense that could lead to
discipline. In such a case, it is credible that marking them as confidential may
have seemed redundant given their usage and the regulatory strictures already
in place. Based on the information in the record, the Court finds that the State
took reasonable measures to ensure the confidentiality of the Review Sheets.
Wambold further contends that the NJSP delayed by failing to file its
Clawback Motion until approximately ten weeks after the Review Sheets were
inadvertently disclosed. Wambold, however, ignores that when counsel
referenced the Review Sheets in his proposed amended pleading, the NJSP
12

responded shortly thereafter, asserting that the documents were privileged and
requesting their return. Wambold, through his counsel, refused to return the
Review Sheets, and “implored them to file an application.” The issue was
then addressed several times during case management conferences and the
undersigned instructed the NJSP and Wambold to engage in the meet and
confer process to see if they could resolve their dispute with regard to the
Review Sheets. When that failed, the undersigned set a schedule for the filing
of a motion, which the State followed.
Under the circumstances and given the NJSP’s prompt demand for the return
of the documents, as well as its compliance with the instructions of the
undersigned’s first to attempt to resolve the issue and then to file its motion for
the return of the documents, the Court finds that the NJSP took reasonable
steps to procure the return of the Review Sheets.
...
Accordingly, this Court finds that the Review Sheets are protected by the
deliberative process privilege. The Court also finds that the privilege has not
been waived, and the Review Sheets should therefore be returned to the State,
along with an identification of any individuals to whom the Review Sheets
have been disseminated.
(Id. at 2-15 (footnote and citations to record omitted).) Wambold timely moved for
reconsideration of the September 2013 Order on October 4, 2013. (See dkt. entry no.
101.)
ON DECEMBER 11, 2013, the Court overseeing the STFA Action declined to
issue an injunction. See D.N.J. No. 13-1065, dkt. entry no. 37, 12-11-13 Mem. & Order.
STFA appealed. See 3d Cir. No. 13-4822. That decision has now been affirmed. See
State Troopers Fraternal Ass’n of N.J. v. New Jersey, No. 13-4822, slip op. (3d Cir. Sept.
15, 2014).

13

THE MAGISTRATE JUDGE denied Wambold’s motion to reconsider in the
December 2013 Order, stating:
First, Wambold contends that the Court failed to consider the Certification of
Christopher Burgos, the President of the State Troopers Fraternal Association
of New Jersey, Inc. (the “Burgos Certification”). Wambold points out that the
Court failed to mention the Burgos Certification in the September 20 Order,
despite [it] having been submitted. To the extent the Court’s failure to mention
the Burgos Certification in its September 20 Order has caused any confusion,
the Court hereby clarifies by acknowledging that the Burgos Certification was
received as part of Wambold’s opposition to the Clawback Motion, and that it
was in fact considered by the Court in reaching its determination. Accordingly,
the Motion for Reconsideration based upon the Burgos Certification is denied.
Next, Wambold states that he seeks clarification of his obligations under the
September 20 Order. Particularly, Wambold asks this Court to clarify that the
September 20 Order does not have a preclusive effect on other litigation in
which the State and Wambold are involved. This Court tried to be very clear
in that Order that the decision was limited to the matters before it, particularly
with regard to its analysis of the deliberative process privilege. That analysis
was necessarily limited to the issues before the Court at that time. This Court
cannot opine as to what another court, in another circumstance and with
different legal and factual issues, might do, nor should it. The parties are at
liberty to make their arguments to those tribunals.
Nonetheless, the import of the September 20 Order must remain clear: it is
Wambold’s obligation under that Order to return all copies he has in his
possession, custody or control to the State, and to further advise the State of
any persons or entities to which the documents have been disseminated. If
those persons or entities include other courts, that must be disclosed. If copies
that have been disseminated remain within Wambold’s possession, custody or
control, they must be retrieved and returned.
(12-9-13 Mag. Judge Order at 2-3.)

14

WAMBOLD timely appealed to this Court on December 23, 2013, pursuant to
Federal Rule of Civil Procedure 72 from “the Opinion and Order denying [his] motion for
reconsideration of the Court’s September 20, 2013 Opinion and Order granting [NJSP’s]
motion seeking the return of documents produced by the State and an identification of all
those to whom the documents at issue were produced”, i.e., the September 2013 Order
and the December 2013 Order. (Notice of Appeal at 2.) See L.Civ.R. 72.1(c). He does
not seek review of the August 2013 termination of the motion to amend.
THE CLAWBACK MOTION did not address a dispositive matter, and thus was
within the purview of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(A). When an
appeal “seeks review of a matter within the purview of the Magistrate Judge, such as a
discovery dispute, an even more deferential standard, the ‘abuse of discretion’ standard,
must be applied”. Salamone v. Carter’s Retail, No. 09-5856, 2012 WL 821494, at *4
(D.N.J. Mar. 9, 2012). In reviewing the Magistrate Judge’s order in a non-dispositive
matter, a district court may modify, vacate, or reverse the order only if the order was
“clearly erroneous or contrary to law”. 28 U.S.C. § 636(b)(1)(A); Cipollone v. Liggett
Grp., 785 F.2d 1108, 1113 (3d Cir. 1986); see Jackson v. Chubb Corp., 45 Fed.Appx.
163, 166 n.7 (3d Cir. 2002) (stating district court may reverse Magistrate Judge’s ruling
on non-dispositive issues, e.g., discovery, only if ruling is clearly erroneous or contrary to
law). An order is clearly erroneous when, although there is evidence to support that
finding, the reviewing court upon considering the entire evidence is left with the definite
and firm conviction that a mistake has been committed. See Kounelis v. Sherrer, 529
15

F.Supp.2d 503, 517-18 (D.N.J. 2008); Dome Petroleum Ltd. v. Emp’rs Mut. Liab. Ins.
Co., 131 F.R.D. 63, 65 (D.N.J. 1990). An order is contrary to law if the Magistrate Judge
misinterpreted or misapplied applicable law. See Gunter v. Ridgewood Energy Corp., 32
F.Supp.2d 162, 164 (D.N.J. 1998). The Court, pursuant to the clearly erroneous standard
of review, will not reverse the Magistrate Judge’s determination even if the Court might
have decided the matter differently. See Wortman v. Beglin, No. 03-495, 2007 WL
2375057, at *2 (D.N.J. Aug. 16, 2007).
THE COURT resolves the appeal without oral argument. See L.Civ.R. 78.1(b).
The Court has thoroughly reviewed the papers filed in support of, and in opposition to,
the appeal. (See dkt. entry nos. 115, 117, & 118.) The Court concludes that: (1) the
September 2013 Order and the December 2013 Order appear to have been decided in a
rational exercise of the Magistrate Judge’s discretion; and (2) the Magistrate Judge did
not err, misinterpret, or misapply any applicable law in issuing those Orders. See Gunter,
32 F.Supp.2d at 164; see Wortman, 2007 WL 2375057, at *2. The Magistrate Judge
correctly found that the deliberative-process privilege allowed NJSP to consider many
potential outcomes and points of view before reaching an official final decision as to
Wambold’s conduct without fear of public scrutiny, and protected the process of debate
and deliberation that would not otherwise occur if frank differences of opinion along the
way were subject to disclosure. See Guidiville Rancheria of Cal. v. United States, No.
12-1326, 2013 WL 6571945, at *8 (N.D. Cal. Dec 13, 2013) (reversing Magistrate
Judge’s order denying return of documents inadvertently disclosed by government
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agency). Cf. Amobi v. D.C. Dep’t of Corrs., 262 F.R.D. 45, 54-55 (D.D.C. 2009)
(denying return of documents inadvertently disclosed by government agency, as agency
did not seek to rectify the error for at least 55 days and failed to take reasonable efforts to
prevent disclosure). Indeed, NJSP sought the return of the documents promptly upon
becoming aware of their disclosure. Therefore, the Court will affirm the September 2013
Order and the December 2013 Order.
THE COURT also intends to terminate and close this action in its entirety for
several reasons. All of the pending claims have been settled. (See 8-21-13 Pl. Letter at 1;
8-21-13 Wambold Letter at 1; 10-21-13 Juckett Letter at 1.) There is no basis for the
Court to endeavor to adjudicate Wambold’s proposed counterclaims and cross-claims,
even if they concern federal law. See Vaden v. Discover Bank, 556 U.S. 49, 60-61
(2009) (stating “[n]or can federal jurisdiction rest upon an actual or anticipated
counterclaim”, noting that the Supreme Court has “emphatically” stated that even a
compulsory federal counterclaim does not give rise to jurisdiction); Barkwell v. Portfolio
Recovery Assocs., No. 09-113, 2010 WL 2012149, at *1-3 (M.D. Ga. May 20, 2010)
(finding no jurisdiction over remaining counterclaim where first-party action giving rise
to jurisdiction settled, even though counterclaim asserted allegations under federal law).
THE PROPOSED COUNTERCLAIMS AND CROSS-CLAIMS asserted by
Wambold are also barred by Younger abstention because related state proceedings are
ongoing. A federal court must abstain from exercising jurisdiction, pursuant to the
Younger abstention doctrine, when (1) related state proceedings are ongoing, (2)
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important state interests are implicated, and (3) there is an adequate opportunity to raise
federal claims in the state proceedings. See Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 435 (1982); Younger v. Harris, 401 U.S. 37, 43-54 (1971).
The state proceedings here are “proceedings” under Younger. See Zahl v. Harper, 282
F.3d 204, 209 (3d Cir. 2002); N.J.Ct.R. 2:2-3 (setting forth procedure for further state
review); see also Ocean Grove Camp Meeting Ass’n v. Vespa-Papaleo, 339 Fed.Appx.
232, 237, 239 (3d Cir. 2009) (stating under Younger that proper forum for review of New
Jersey state agency’s final decision is New Jersey Appellate Division); W.K. v. N.J. Div.
of Dev’l Disabilities, 974 F.Supp. 791, 794 (D.N.J. 1997) (stating proper forum for
review of state agency’s final decision is New Jersey Appellate Division, as for Younger
purposes the administrative and appeals process is treated as a unitary system). Also,
disciplinary proceedings concerning police officers implicate important state interests
under Younger. See Terry v. Town of Morristown, No. 06-1788, 2007 WL 2085351, at
*4 (D.N.J. July 17, 2007); Fontaine v. City of Chester, No. 85-2453, 1986 WL 9486, at
*3 (E.D. Pa. Aug. 28, 1986).
TO THE EXTENT that any of Wambold’s proposed counterclaims and crossclaims seek to avoid or invalidate any orders issued by a New Jersey state court, they are
barred. The proper way to do so would be to seek review through the entire state
appellate process, and then seek certiorari directly to the United States Supreme Court.
See D.C. Ct. of Apps. v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid. Trust Co.,
263 U.S. 413, 414-16 (1923). The Rooker-Feldman doctrine prohibits adjudication of a
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claim where the relief requested would require a federal court to either determine whether
a state court’s decision is wrong or void that decision, and thus would prevent a state
court from enforcing its orders.
THE COURT, in terminating this action, does not have the authority to bar
Wambold — upon payment of the required fee — from attempting to bring a completely
separate action asserting his claims in federal court. In fact, the Court is at a loss to
understand why Wambold would attempt to proceed under this particular civil action
number, as the plaintiff’s claims — including those asserted against him — have been
settled. But it also appears that several of his arguments raised in opposition to the
Clawback Motion have now been addressed by the Third Circuit Court of Appeals in the
STFA Action. The Court offers no opinion as to whether a separate action brought by
Wambold at this juncture would be terminated on the same grounds discussed here.
THE COURT will issue an appropriate order and judgment.

s/Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: September 16, 2014

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