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Drawing a line on a plaintiff’s right to discovery into an employer’s internal investigation of discrimination, a New Jersey appeals court on June 17 ordered notes of attorney interviews returned to defense counsel, warning the plaintiffs’ lawyer to forget anything he learned from them. The New Jersey Appellate Division reversed Superior Court Judge Maria Marinari Sypek’s order that the defense hand over the typed transcripts of the interviews, finding them protected by the work-product and attorney-client privileges. “Intrusions into breaches of the privileges implicated here are not to be lightly tolerated,” Judge Edwin Alley wrote for the three-judge panel in Terrell v. Schweitzer-Maudit International Inc., A-4283-00T5. “Obviously, moreover, they are not unilateral and can cut both ways. Today it is the employer who was disadvantaged; tomorrow it may be the employees or the union.” The plaintiffs — John Terrell, Gene Key and Myron McPherson — sued a Schweitzer-Maudit subsidiary, Kimberly Clark Corp., claiming that they were subjected to a hostile work environment in violation of the New Jersey’s Law Against Discrimination. The men were employed at the Georgia-based paper manufacturer’s Spotswood facility. The company retained Morristown, N.J.’s Stanton, Hughes, Diana, Cerra, Mariani & Margello to contest the charges. In December 1996, before the complaint was filed, two Stanton Hughes partners, Patrick Stanton and Suzanne Cerra, interviewed nine Kimberly Clark employees to gather factual information in preparation for a defense against the discrimination charges. In March 1998, the plaintiffs’ attorney, Turnersville, N.J., solo practitioner S. Robert Freidel, sent a request for production of documents that included a demand for any notes or memos that reflected any communication between employees and the defense attorneys. Stanton and Cerra refused to comply with the request, citing attorney-client and work-product privilege. At Freidel’s request, Sypek reviewed the documents in camera and, without first giving the defense lawyers an opportunity to raise an objection, granted Freidel’s request on Feb. 28, 2001, albeit with some redactions. Stanton and Cerra did not receive a copy of the order until March 9, 2001, by which time Freidel had received the documents. Alley, joined by Judges Howard Kestin and James Petrella, were bewildered by Sypek’s unexplained, sua sponte order and the process by which it was issued. “Unfortunately, we have no explanation by the Law Division judge for the determinations she made relative to the documents’ redaction and release,” Alley wrote. “Indeed, we have been unable to perceive a sustaining rationale either for her ruling or for her release of the documents before defendants had a chance to test the ruling.” GETTING THE CAT BACK IN THE BAG Stanton and Cerra complained that they will not be able to mount an effective defense now that the documents have been turned over to Freidel. In addition to asking for the documents back, they asked the panel to order that Freidel be removed from the case. The panel refused the second request, saying there was nothing nefarious about Freidel asking for the documents. The judges admitted that steps should be taken to minimize the damage, but admitted there might be little that could be done. “We have no objection to taking reasonable steps to that end, but when the cat is already out of the bag that goal is not readily achievable, if it is achievable at all,” Alley wrote. The panel did order some remedies: The documents are to be returned, Freidel and the plaintiffs must certify they have not retained copies, Sypek must ensure by whatever means necessary to protect the company from her error and Freidel and his clients must take “all possible steps to cleanse their files and strategies” of the documents. Cerra says Sypek’s ruling “obviously” had to be overturned, but is concerned that their defense may be irreparably compromised. “We should have had the opportunity to argue against the release of the documents,” she says. Cerra says Freidel knew the defense would immediately appeal Sypek’s order. He hopes that Freidel has not read the documents, although they have been in his possession for more than a year. Attempts to reach Freidel were unsuccessful. His receptionist said on several occasions last week that Freidel was either out of the office or too busy to discuss the case. Freidel returned one message last week after business hours. One experienced litigator says it would be impossible for Freidel to ignore what is in the documents if he has read them. “It’s just impossible” to not have some of that information come out at trial, says Princeton solo Glenn Bergenfield, a certified civil trial attorney, who read the Appellate Division opinion with interest. A particular problem may arise if, for example, a defense witness’s testimony at trial differs from what is transcribed in the defense lawyers’ notes. “If you have the winning information, how are you not supposed to use it?” Bergenfield asks.

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