COAH: Municipal Group Successful in Appeal of Judge Wolfson’s Ruling to Require Disclosure of Draft Burchell Report

by Jong Sook Nee on December 10, 2015

A consortium of 270 New Jersey municipalities (the “Municipal Group”) and thirty-five individual municipalities were successful in a recent appeal filed with the Appellate Division of a November 19, 2015 Order issued by Middlesex County Mount Laurel Judge Douglas Wolfson which required the disclosure of a preliminary draft report in the Monroe Declaratory Judgment action, which was prepared for the Municipal Group by Dr. Robert Burchell.

The Municipal Group had entered into a shared services defense agreement (MSSD) in order to address fulfillment of their planning obligations pursuant to the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, and in the defense of builder’s remedies actions relating to compliance with their FHA obligations. The Municipal Group includes the Township of Monroe.

Judge Wolfson ordered disclosure of Dr. Burchell’s preliminary draft report in the Monroe litigation, even though the Report will never be finished or used due to Dr. Burchell’s illness. Nonetheless, Judge Wolfson found, without any actual testimony, certifications, or affidavits, that it was reasonable to assume that there had been widespread disclosure throughout the State of the Report and that as a result, the draft Report was no longer privileged information. Judge Wolfson also said he was not looking to allow the Report in as an opinion or conclusion, but rather to provide the basis of and source of information, protocols, cohorts, data sources, etc.

The Appellate Division however, in a December 7, 2015 Order, found that on this limited record, they could not determine what Judge Wolfson drew from to reach that premise and whether it was correct. Consequently, the Appellate Division directed that Judge Wolfson reconsider applicability of and make findings not only regarding Rule 4:10-2(c), but also whether the Report is included within the attorney-client privilege and/or the work product privilege.

In addition to making additional findings with regard to the question of whether any privileges apply, the Appellate Division also suggested that Judge Wolfson make an in camera inspection of the draft Report prior to ruling whether it is protected by any privilege. The Appellate Division stayed dissemination of the Report until the completion of the remand and entry of additional findings, and retained jurisdiction.

In response to the Appellate Division Order, Judge Wolfson has requested a list of all the individuals that the draft Burchell Report was distributed to and a certification from each person who received a copy of the Burchell Report, including a list of all to whom that person sent it.

For more information on this topic, please contact Leslie G. London at (973) 622-5335.


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