Personnel Records and In-Camera Review: The Courts Continue Balancing Privacy and Confidentiality Against a Plaintiff’s Paramount Interest in Obtaining Relevant Discovery
As published in the New Jersey Labor and Employment Law Quarterly, Vol. 43, No. 3
by Michael Malatino
In the last year, the Appellate Division granted three applications for leave to appeal discovery orders directing the production of personnel records and/or documents concerning complaints of discrimination, retaliation and/or harassment. These suits each asserted, inter alia, violations of the New Jersey Law Against Discrimination (LAD) against various New Jersey state agencies. Each of these state agencies appealed the trial courts’ order compelling production of these records, asserting the trial courts erred by failing to review these ‘confidential’ documents in camera before compelling production.
In light of the existing well-established authority, the Appellate Division in Osborne v. New Jersey Transit, et al., Madlinger v. New Jersey Transit Corp., and Narvaez v. State of New Jersey Judiciary, et al. declined to find a bright line rule mandating trial court review in camera for personnel records and/or documents concerning complaints of discrimination, retaliation and/or harassment before compelling production. Nonetheless, the court in Osborne and Madlinger reversed, while the court in Narvaez modified the trial court order seeking to balance the competing privacy interests.
Dixon, Payton, Connolly: The Controlling Case Law
New Jersey courts have long recognized that, for various reasons, documents regarding complaints of discrimination, retaliation and/or harassment may be relevant and discoverable in a suit alleging violation of the LAD. The accepted basis for relevancy includes, but is not limited to, an employer’s motive, intent, plan, knowledge, or absence of mistake.(1) Personnel records may likewise be discoverable for reasons including, but not limited to, use as comparator evidence.(2)
In analyzing whether certain personnel records are discoverable in connection with discrimination, harassment, and retaliation suits, courts have found that this type of discovery is not generally privileged. In Dixon v. Rutgers,(3) the female plaintiff was denied a promotion to the position of associate professor, while certain of her male colleagues were promoted. Alleging disparate treatment under the LAD, the plaintiff sought production of ‘comparator’ information, which included internal peer-reviewed materials.(4) The New Jersey Supreme Court, in allowing production, expressly rejected a qualified privilege for the internal personnel records at bar.(5) In support of its decision to permit discovery of the personnel records at issue, the Supreme Court found that the strong public policy favoring disclosure and eradication of discriminatory treatment in employment outweighed the public’s interest in maintaining a confidential peer review process.(6) In applying this balancing test, the Dixon Court directed trial courts to consider whether “the discrimination charge is valid and the material requested relevant.”(7) The Supreme Court noted that this validity determination is intended to place only a “modest burden on the plaintiff.”(8) In light of Dixon, there is no qualified privilege generally applicable to the production of personnel records, even when those personnel records serve a public purpose.
In Payton v. New Jersey Turnpike Authority,(9) the plaintiff sought production of materials relating to the employer’s investigation into the plaintiff’s harassment complaint.(10) The plaintiff sought this information to test the timeliness and thoroughness of the employer’s investigation in light of the defendant asserting an affirmative defense based on its ‘effective’ anti-harassment policy.(11) While the Court in Dixon was required to balance the public interest in maintaining the confidentiality of personnel records against the public interest in eradicating unlawful workplace discrimination, the Court in Payton was confronted with two competing public interests, both serving the purpose of disclosing and eradicating unlawful employment discrimination. Despite the Court in Payton finding the competing privacy interests weightier than those before it in Dixon, the Payton Court nonetheless found in favor of disclosure, and ordered production of the defendant’s investigation materials.(12)
Despite ordering production, the Supreme Court in Payton did recognize a qualified privilege.(13) Specifically, the Court held that “the trial court may require procedures that protect the confidentiality of those involved in the investigation if a loss of confidentiality would otherwise undermine the efficacy of investigations.”(14) Notably, the Court did not mandate any particular procedures as necessary to maintain the requisite confidentiality; rather, the trial court was vested with the discretion to tailor the appropriate means of ensuring the balance of the competing interests, which, again, favored disclosure.(15) The suggested options for balancing the applicable confidentiality interests included redaction, issuance of confidentiality or gag orders, and/ or sealing portions of the record.(16) While Payton does touch on in camera review, it does so in the context of certain internal investigation records being subject to the attorney-client privilege. Nowhere in Payton does the Court mandate an in camera review.
The Appellate Division, in Connolly v. Burger King Corporation,(17) further extended Payton, holding that not only does the balance of interests weigh in favor of disclosure as to an investigation by the employer into the plaintiff ’s own workplace discrimination complaint(s), but the balance also weighs in favor of disclosing other complaints of workplace discrimination against the employer, regardless of whether the plaintiff has prior knowledge of the other complaints.(18)
Given this well-developed body of case law establishing that these types of documents are discoverable in connection with LAD claims, the Appellate Division in Osborne, Madlinger, and Narvaez sought to apply these authorities in balancing the confidentiality interests at play, understanding that the plaintiff’s interest in securing production is paramount.(19)
Osborne v. New Jersey Transit, et al.
It is with this backdrop that the Appellate Division granted New Jersey Transit’s (NJT) application for an interlocutory appeal in Osborne v. New Jersey Transit.(20) In Osborne, the plaintiff, who was an assistant supervisor for NJT’s bus operations, had ended a consensual relationship with another NJT employee. While engaged in this consensual relationship, the other employee instructed the plaintiff not to report the relationship, as per NJT’s nepotism/dating relationships standard operating procedures. The other employee stated that if the plaintiff did report the relationship, she would “suffer consequences,” including the loss of her employment.(21) Following the end of the romantic relationship, NJT assigned the plaintiff to report to the individual with whom she had been involved in the prior romantic relationship.(22) The plaintiff alleged that the former love interest sought to resume the romantic relationship, but when the plaintiff declined, NJT retaliated against her.(23) The plaintiff alleged that this retaliation culminated in the termination her employment with NJT.(24)
The plaintiff thereafter filed a claim for sexual harassment and retaliation under the LAD.(25) Following a motion to compel, the trial court ordered NJT to produce certain employee complaints involving “sexual harassment or harassment” with certain limitations on scope.(26) The trial court further permitted NJT to redact any information it deemed privileged and/or confidential from the responsive complaints.(27)
An interlocutory appeal followed, wherein the Appellate Division reversed and remanded, holding that the trial court: abused [its] discretion when, pursuant to decisional authority governing in-camera review of allegedly privileged documents, …[the trial court] abdicated to NJT [its] responsibility to examine and determine which complaints could be properly turned over to Plaintiff.(28)
While Payton expressly rejected the creation of a general privilege preventing disclosure of workplace discrimination complaints, that court did recognize a conditional privilege.(29) The conditional privilege, however, was not expansive. Rather, the court in Payton specifically identified redaction, issuance of confidentiality or gag orders, and/or sealing of portions of the record as potentially sufficient means of ensuring confidentiality.(30) Because the Appellate Division in Osborne ordered an in camera review—as opposed to allowing the defendant to redact confidential and/or privileged information itself—Osborne should be read narrowly to support in camera review of information otherwise protected by an applicable privilege. Reading Osborne as a mandate for in camera review of every request for discovery involving complaints of discrimination, retaliation or harassment, would contravene Payton.
Madlinger v. New Jersey Transit Corp.
The Appellate Division in Madlinger(31) granted leave to appeal orders compelling the production of other complaints of discrimination and personnel records. The plaintiff in Madlinger alleged that while she was working in NJT’s marketing and business development department, her supervisor among others, subjected her to harassing conduct and disparate treatment due to gender, ancestry and marital status, in violation of the LAD.(32) The trial court compelled NJT to produce certain other complaints of discrimination, as well as certain personnel files, among other discovery.(33)
The Appellate Division granted NJT’s request for leave to appeal, and again reversed and remanded the trial court’s order compelling production of the discovery.(34) Consistent with Dixon and Payton, the Appellate Division found that the prior complaints of discrimination were relevant.(35) However, even though NJT did not make the “particularized assertions of privilege or confidentiality regarding specific documents” that Payton requires, the Appellate Division still found that the trial judge had “abdicated her authority and obligation to control discovery” by compelling production.(36)
Unlike in Osborne, the Appellate Division in Madlinger recognized NJT’s failure to make “particularized assertions of confidentiality regarding specific documents.”(37) In remanding to the trial court, the Appellate Division did not immediately order in camera review, as it did in Osborne; rather, the Appellate Division remanded to the trial court, allowing NJT the opportunity to make the particularized assertions of privilege and/or confidentiality.(38) Should NJT be able to make a particularized assertion of confidentiality or privilege, then the trial court is directed to review those designated records in camera.
Notably, Madlinger reversed the trial court order compelling the production of both other complaints of discrimination, as well as personnel records.(39) Under Dixon, personnel records are not subject to even the conditional privilege recognized in Payton concerning complaint documents.(40) Therefore, treating both types of records as though an identical standard applies, potentially deviated from Dixon and Payton.
Narvaez v. State of New Jersey Judiciary, et al.
In Narvaez,(41) the plaintiff was the chief probation officer for the New Jersey Judiciary (NJJ) in the Camden Vicinage. The NJJ terminated the plaintiff’s employment, citing dissatisfaction with his job performance.(42) The plaintiff alleged that he had been terminated as a result of racial discrimination (i.e., being Hispanic), in violation of the LAD, among other causes of action.(43) The plaintiff sought discovery of certain personnel records, which included what could be deemed comparator information.(44) The parties also entered into a confidentiality protective order.(45) Following a motion to compel, the trial court ordered the defendants to produce certain personnel records without first conducting an in camera review.(46) NJJ appealed, again arguing that the trial court erred by not first conducting an in camera review of the personnel records before compelling the NJJ to produce the records.(47)
On appeal, the Appellate Division again affirmed the relevancy of the requested personnel records and found the applicable discovery confidentiality order to provide sufficient protection from indiscriminate public disclosure.(48) The court further allowed NJJ the opportunity to redact privileged and/or otherwise confidential information.(49) To the extent the plaintiff challenged NJJ’s redactions, the court in Narvaez directed the trial court to review the breadth and propriety of the redactions in camera.(50) The court in Narvaez expressly rejected a bright line rule mandating in camera review.(51)
As these recent Appellate Division decisions demonstrate, discovery of personnel records and/or documents concerning complaints of discrimination, retaliation, and/or harassment require a nuanced balancing of competing privacy interests, with the understanding that balance weighs in favor of disclosure. Defendants who object to disclosure should make a particularized assertion of privilege and/or confidentiality for each document they are attempting to withhold, and allow the trial court to, in its discretion, determine the means appropriate to balance the competing privacy interests. That the information sought to be produced consists of personnel records and/or complaints of discrimination is insufficient, in and of itself, to warrant an in camera review. Careful application of the controlling law will not only ensure that relevant information is produced, but also that it is produced in a timely and efficient manner with any confidential and/or privileged information properly protected.
Michael Malatino is an associate with Deutsch Atkins, P.C. in Hackensack.
For the full volume of the Labor and Employment Law Quarterly click HERE
See, e.g., Abrams v. Lightolier Inc., 50 F.3d 1204 (3dCir. 1995); Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996).
See, e.g., Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55 (1978); Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012); Bobo v. United Parcel Service, Inc., 665 F.3d 741 (6th Cir. 2012).
110 N.J. 432 (1988).
Id. at 438.
Id. at 435.
Id. at 451-54.
Id. at 454.
Id. at 455.
148 N.J. 524 (1997).
Id. at 531.
Id. at 534.
Id. at 544.
Id. at 542.
306 N.J. Super. 344 (App. Div. 1997).
Id. at 349-50.
Payton, 148 N.J. at 542.
2017 N.J. Super. Unpub. LEXIS 962 (App. Div. Apr. 20, 2017); 2017 WL 1407281 (N.J. Super. Ct. App. Div. Apr. 20, 2017).
Id. at *1.
Id. at *1-3.
Id. at *1.
Id. at *2.
Id. at *5.
Id. at *5-6.
Payton, 148 N.J. at 542.
Id. at *1.
Id. at *1-3.
Id. at *5-6.
Madlinger, 2017 N.J. Super. Unpub. LEXIS 2726 at *5-6.
Id. at *8.
See Dixon, 110 N.J. at 432; Payton, 148 N.J. at 542.
2017 N.J. Super. Unpub. LEXIS 2920 (App. Div. Nov. 22, 2017); 2017 WL 5619253 (N.J. Super. Ct. App. Div. Nov. 22, 2017).
Id. at *1.
Id. at *1-2.
Id. at *3.
Id. at *4.
Id. at *6-7.
Id. at *5.