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Court Rules that Unfiled Discovery Documents are Exempt from OPRA

A New Jersey Court recently ruled in Drinker Biddle & Reath LLP v. New Jersey Department of Law and Public Safety, Division of Law No. L-63-09, N.J. Super., Mercer Co., that unfiled discovery documents are exempted from disclosure under the Open Public Records Act (OPRA).

The law firm of Drinker, Biddle & Reath LLP pursued transcripts from the depositions of environmental experts in another case involving the NJDEP. The firm needed the transcripts for use in defending its own clients in other litigation. They sought the full transcripts by way of an OPRA request to the New Jersey Division of Law in 2008. After the Division of Law denied the request on the ground that discovery materials not filed in court are exempt, the firm filed an order to show cause seeking the documents under OPRA and the common-law right of access. The court ultimately found that the state’s interest in protecting the information within those transcripts outweighed the public’s need for it.

The judge in the case reasoned that the transcripts “provide an intimate look into the thoughts and mental processes of the attorney,” and allowing access to them would make Drinker, Biddle & Reath “privy to the mental processes and strategy of the attorneys representing the State.” This would place the NJDEP at a “severe disadvantage,” as it would have no reciprocal right to the unfiled discovery in the custody of Drinker Biddle and other private attorneys who represent parties in environmental litigation. This, according to the judge, could ultimately affect agency decision-making and the investigation of polluters.

The attorneys of Lieberman Blecher & Sinkevich are experienced environmental litigators who deal in a variety of environmental case matters; from toxic torts and hazardous site cleanups, to the representation of municipal and government entities, our attorneys work tirelessly to serve our clients.


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