BAYLISS et al v. TROOPER R. WAMBOLD et al

Filing 98

OPINION AND ORDER that the NJSP's Motion for Return of Documents [Docket Entry No. 75 ] is GRANTED and Wambold is hereby ordered to return the Review Sheets to counsel for the NJSP and to identify any individuals to whom the Review Sheets were disseminated within 10 days of entry of this Order. Signed by Magistrate Judge Lois H. Goodman on 9/20/2013. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 11-890 (MLC)(LHG)

JAMES BAYLISS,
Plaintiff,
v.

OPINION AND ORDER
NEW JERSEY STATE POLICE, et al.,
Defendants.

THIS MATTER comes before the Court by motion filed by the New Jersey State Police
(the “State” or the “NJSP”) on March 8, 2013 [Docket Entry No. 75], seeking an Order
compelling the return of documents inadvertently produced, and an identification of all those to
whom the documents at issue were disseminated (the “Clawback Motion”). The Clawback
Motion is opposed by Defendant Trooper R. Wambold (“Wambold”). [Docket Entry No. 83]
(the “Wambold Brief"). The Court has considered the motion on the submissions without oral
argument, pursuant to Fed. R. Civ. P. 78. For the following reasons, the motion is GRANTED.
I.

BACKGROUND

This case has a somewhat tortured procedural history. For purposes of this Order, the
Court presumes familiarity with the background and therefore limits the discussion to that
necessary for an understanding of the issues.
Plaintiff James Bayliss (“Bayliss” or “Plaintiff”) filed suit in the Superior Court of New
Jersey on or about January 14, 2011, naming as defendants the NJSP, Wambold and Trooper
Juckett (“Juckett”). Defendants removed the case to Federal Court on February 17, 2011.
[Docket Entry No. 1]. After a period in which Plaintiff amended the complaint twice and the
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case was stayed for several months in light of then-ongoing criminal proceedings, an initial
scheduling conference was conducted on March 29, 2012. The parties then commenced
discovery.
At a status conference conducted on October 24, 2012, the issue currently before the
Court was first raised. Specifically, the parties addressed a proposed amended pleading that
counsel for Wambold had circulated at the Court’s instruction, to determine whether there was
consent for the amendment. During the call, the NJSP raised the fact that the proposed amended
pleading 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. [Docket Entry No.
48]. 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. [Docket Entry No. 54]. 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.” Id.
On December 5, 2012, Wambold filed a Motion for Leave to File a Third Amended
Answer, Counter-Claims, Cross-Claims & Third Party Complaint (the “Motion to Amend”).
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[Docket Entry No. 59]. The other Defendants have opposed the motion to amend, on various
grounds, including that the amendment should not be allowed under the Younger abstention
doctrine, given that the claims sought to be added are the subject of pending state proceedings.
[Docket Entry No. 82].
After the Motion to Amend had been filed, the parties notified the Court that they had
agreed to mediation with retired Superior Court Judge John E. Keefe in an effort to resolve the
many outstanding issues in the case. They requested that the status quo be maintained while
they explored settlement. [Docket Entry No. 62]. When mediation proved unsuccessful, the
Court conducted an in-person status conference on February 13, 2013, at which time the Court
set a schedule for the filing of the present motion for the return of documents by no later than
March 8, 2013.
The Clawback Motion was then timely filed on March 8, 2013. [Docket Entry No. 75].
Wambold filed opposition on April 1, 2013. [Docket Entry Nos. 83, 84, 85]. Soon thereafter,
the parties advised the undersigned that they were again engaging in the mediation process, and
the Clawback Motion, along with Wambold’s Motion to Amend, were put on hold.
On August 22, 2013, the Court conducted another status conference, during which
counsel advised that Bayliss had reached a settlement with all Defendants. Wambold had not,
however, settled the claims he had raised against the State. The parties discussed the impact of
the settlement on the issues pending in this matter, including whether this Court has jurisdiction
over any remaining issues, particularly those raised in the Motion to Amend. The Motion to
Amend was terminated and is to be the subject of further briefing if Wambold intends to pursue
that motion; otherwise those claims will proceed in state court, where separate actions in which

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the same claims have been asserted are already pending. In the interim, the State has indicated
that it still seeks to have a decision from this Court on the Clawback Motion.

II.

LEGAL STANDARD

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 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
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Aircraft Corp. v. United States, 106 Fed. Cl. 571, 582-583. (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 workproduct 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). 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).
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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 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. 075298, 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
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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. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
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 availability of other evidence; (3) the seriousness of the litigation and issues involved; (4)
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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.

III.

ANALYSIS
A. Whether the Documents at Issue Are Privileged
i.

Whether the Deliberative Process Privilege Applies to the Review
Sheets: The State’s Prima Facie Case

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 “Jones Cert.”), the Commanding Officer of the NJSP Office of
Professional Standards (the “OPS”). [Docket Entry No. 75-2]. 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. Jones Cert. ¶3. The investigating officer prepares a
summary of the allegations and the conclusions reached. Id. 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. Id. The supervising command staff members do not conduct
their own independent factual investigations. Id. Instead, the command staff members complete
the Review Sheets, offering their opinions on the investigation. Id. After receipt of the
investigation, the summary, and the completed Review Sheets, Major Jones formulates a
recommendation for the Superintendent of the New Jersey State Police. Id. The Superintendent
renders a decision with respect to proposed disciplinary action. Id.

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Major Jones asserts that he “rel[ies] heavily upon the candid evaluations of [his] staff
before submitting [his] recommendation to the Superintendent.” Jones Cert. ¶4. 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.” Jones Cert. ¶¶5-6. 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.” Jones Cert. ¶6. Major Jones also asserts that the disclosure of the
Review Sheets in this case is being 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. Jones Cert. ¶¶8-9.
Indeed, such disclosure is a disciplinary offense. Id.
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
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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.
Wambold Brief at p. 7. 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. Id. at pp. 8-9. 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.
Wambold Brief at p. 9. Thus, Wambold contends, there were two final decisions made by the
NJSP. Id.
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

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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.

ii.

Whether, on Balance, the Review Sheets Are Entitled to Deliberative
Process Protection

As noted earlier, the 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,
following the guidance of the Third Circuit Court of Appeals, which instructs it to 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. NJSP Brief at p. 7. [Docket Entry No. 75-1]. 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. NJSP Brief at pp. 10-12.
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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 a defense in the Bayliss
litigation is to assert that Wambold engaged in misconduct. Wambold Brief at 10. 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. Id. at pp. 10-12.
In so arguing, Wambold mistakes what is currently at issue in this case. As currently
plead, 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 presently 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
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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).

B. Whether Disclosure of the Review Sheets Constitutes a Waiver of the
Deliberative Process Privilege
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. Jones Cert. ¶7. According to
Wambold’s counsel, the Review Sheets were attached to an email sent to an attorney
representing another trooper in an unrelated matter. Certification of Charles J. Sciarra, Esq.
(“Sciarra Cert.”) ¶13. 1 [Docket Entry No. 83-2]. Vincent J. Nuzzi, Esq., who represents Juckett
with regard to disciplinary charges filed against him, also put in a certification [Docket Entry No.
75-2], 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.
Id. ¶8.

1

The Sciarra Certification is attached as an exhibit to the Certification of Matthew R. Curran in this matter,
but is encaptioned as having been submitted in the action “I/M/O Request for Defense and Indemnification, Bayliss
v. New Jersey State Police, et al., Docket No. 11-cv-0890,” in the Superior Court of New Jersey, Appellate Division,
Docket No. A-6043-11T4.

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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. Jones Cert. ¶7. It was also a violation of the rules
and regulations of the NJSP, and is a disciplinary offense. Id. 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. Jones Cert. ¶9. 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 responded shortly thereafter, asserting that the documents were privileged
and requesting their return. Sciarra Cert. ¶16. Wambold, through his counsel, refused to return
the Review Sheets, and “implored them to file an application.” Id. 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
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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.

IV.

CONCLUSION

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.
For the foregoing reasons, and for good cause shown,
IT IS on this 20th day of September, 2013,
ORDERED that the NJSP's Motion for Return of Documents [Docket Entry No. 75] is
GRANTED and Wambold is hereby ordered to return the Review Sheets to counsel for the
NJSP and to identify any individuals to whom the Review Sheets were disseminated within 10
days of entry of this Order.

_____ __
LOIS H. GOODMAN
United States Magistrate Judge
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