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A company lawyer’s notes taken during talks with employees who were defendants and potential witnesses in a job discrimination suit are not subject to discovery by the plaintiff, a Hudson County, N.J., judge has ruled. Superior Court Judge Seymour Margulies said the plaintiff’s lawyer, failed to show a compelling need for the documents that would overcome the confidentiality afforded by the attorney-client and work-product privileges. “The structure and contents of the handwritten notes placed them within the rationale of why they should be confidential,” Margulies wrote in Tartaglia v. UBS Paine Webber Inc., L-2550-99, decided June 26. “Many of the notations by the attorney … are factual recitals of what happened, separate from the expressed attorney’s mental impression or legal theories. But they result from the communications extracted by the attorney who was obviously preparing a defense to the pending case,” Margulies continued. The ruling came nine days after the Appellate Division, in Terrell v. Schweitzer-Maudit International Inc., A-4283-00T5, reversed a Mercer County judge’s order that defense counsel hand over to plaintiffs’ lawyers typed copies of interview notes conducted as part of the internal investigation into discrimination complaints. Appellate Division Judge Edwin Alley said the notes were clearly protected by the work-product privilege. In the Hudson County case, plaintiff Maria Tartaglia sued after her termination as in-house counsel at Paine Webber’s Weehawken office, where she worked from 1992 to 1998. She alleged that her superiors tolerated a hostile work environment and that she was fired partly because of accommodations she requested to help her deal with her bipolar disorder. Her lawyer, Bennet Zurofsky, of Newark’s Reitman Parsonnet, argued for release of interview notes taken by Paine Webber’s outside counsel, New York’s Epstein, Becker & Green, saying that memories of the defendants and witnesses may erode over time. Zurosky cited a 2001 Appellate Division ruling, Pfender v. Torres, 336 N.J. Super. 379, holding that statements taken by an insurer after an automobile accident were discoverable. Epstein, Becker partner Ronald Green retorted that the Appellate Division refused to apply Pfender in the case of a lawyer for a trucking company took a statement of an employee driver after an accident. Miller v. J.B. Hunt Trans. Inc., 339 N.J. Super. 144 (2001). Margulies agreed, noting, “The attorney-client privilege attaches to all corporate employees when the corporation’s attorney is preparing to defend litigation. It has even been extended to former employees.”

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