DDS No. 04-1-4646

July 21, 2014 (Date Decided)

Judge Cuff (temporarily assigned)

For appellant: Jonathan R. O’Boyle, a member of the Pennsylvania bar, and Walter M. Luers (Mr. Luers, attorney).

For respondents: Gene R. Mariano (Parker McCay, attorneys; Stacy L. Moore, Jr., on the brief).

For amicus curiae DRI-The Voice of the defense bar: Matthew T. Nelson, a member of the Michigan bar (Goldberg Segalla, attorneys; Mr. Nelson, Michael J. Leegan, and Mary Massaron Ross, a member of the Michigan bar, on the brief).

FOR AMICUS CURIAE NEW JERSEY STATE BAR ASS’N: Thomas Hoff Prol (Paris P. Eliades, President, attorney; Mr. McCann, of counsel; Mr. Prol and Mr. McCann, on the brief).

FOR AMICI CURIAE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS OF NEW JERSEY AND THE NATIONAL ASS’N OF CRIMINAL DEFENSE LAWYERS: Jeffrey S. Mandel (PinilisHalpern, attorneys; Mr. Mandel and Jenny E. Carroll, on the brief).

FOR AMICUS CURIAE NEW JERSEY DEFENSE ASS’N: Edward J. Fanning, Jr., submitted a brief (McCarter & English, attorneys; Mr. Fanning and Roktim Kaushik, on the brief).

The Court addresses the application of the common interest rule, which extends the confidentiality of attorney-client communications and attorney work product to information shared with attorneys representing separate clients, in the context of a request for production of public records under the Open Public Records Act (OPRA) and the common law right to access government records.

In 2008 and 2009, Martin E. O’Boyle, a resident of the Borough of Longport, filed separate lawsuits against a former planning and zoning board member, Peter Isen and two Longport residents, Frank DiLorenzo, Sr. and Anthony DiLorenzo, Sr.

The private attorney representing Isen and the Longport residents suggested to the municipal attorney that they cooperate in the defense of litigation filed by O’Boyle. The private attorney prepared a joint strategy memorandum and a compendium of documents contained and sent them to the municipal attorney.

O’Boyle submitted OPRA and common law right of access requests encompassing the documents exchanged between the private attorney and the municipal attorney. Longport filed a timely response producing all but six documents, asserting those documents were privileged.

O’Boyle filed a complaint to obtain the withheld documents. The trial court dismissed the case with prejudice, finding the withheld documents were not public records subject to production pursuant to OPRA or the common law right of access. The Appellate Division invoked the common interest rule, concluding that the municipal residents and the former municipal official represented by the private attorney and Longport shared a common interest that permitted non-disclosure of the withheld documents.

Here, the Court expressly adopts the common interest rule as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders. The common interest rule in the work-product context may extend the protection of work product shared “among counsel for different parties if (1) the disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties.”

Applying that rule, the private attorney’s protected attorney work product remained privileged despite its disclosure to the third-party municipal attorney because the materials were shared in a manner calculated to preserve their confidentiality, in anticipation of litigation, and in furtherance of a common purpose. O’Boyle also failed to articulate a particularized need for the withheld materials as required to obtain privileged materials under the common law right of access.