Martin O'boyle v. Borough of Longport

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

Martin E. O’Boyle v. Borough of Longport (A-16-12) (070999)

Argued November 18, 2013 -- Decided July 21, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court addresses the application of the common interest rule, which extends the

confidentiality of attorney-client communications and attorney work product to information shared with attorneys

representing separate clients, in the context of a request for production of public records pursuant to the Open Public

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right to access government records.

Martin E. O’Boyle is a resident of the Borough of Longport who previously filed several complaints

against the Borough and its officials regarding Borough governance. In 2008 and 2009, O’Boyle filed separate

lawsuits against a former planning and zoning board member, Peter Isen, and two Longport residents. David Sufrin,

the private attorney representing Isen and the Longport residents, suggested to Longport’s municipal attorney that

they cooperate in the defense of current and anticipated litigation filed by O’Boyle. To that end, Sufrin prepared a

joint strategy memorandum and a compendium of documents contained on CDs and sent them to the municipal

attorney. In time, the municipal attorney returned the assembled documents to Sufrin.

O’Boyle submitted OPRA and common law right of access requests to the Borough Clerk that

encompassed the materials exchanged between Sufrin and the municipal attorney. Longport withheld those

materials from its production, asserting that they were privileged. O’Boyle filed a verified complaint seeking access

to the withheld documents pursuant to OPRA and the common law right of access. The trial court dismissed the

case with prejudice, determining that the withheld documents were not public records subject to production under

either law. The Appellate Division affirmed. O’Boyle v. Borough of Longport, 426 N.J. Super. 1 (App. Div. 2012).

The panel assumed that the withheld materials were public records and found that the materials constituted Sufrin’s

protected attorney work product. The panel held that the materials remained privileged, despite being shared with

the municipal attorney, under the common interest rule. The Appellate Division also concluded that the withheld

documents did not have to be produced under the common law right of access because, even if the materials were

public documents, O’Boyle’s interest in accessing the materials did not overcome Longport’s interest in withholding

them. The Court granted O’Boyle’s petition for certification. 212 N.J. 431 (2012).

HELD: The Court expressly adopts the common interest rule as articulated in LaPorta v. Gloucester County Board

of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001). Applying that rule, the private attorney’s protected

attorney work product remained privileged despite its disclosure to the third-party municipal attorney because the

materials were shared in a manner calculated to preserve their confidentiality, in anticipation of litigation, and in

furtherance of a common purpose. The requestor also failed to articulate a particularized need for the withheld

materials as required to obtain privileged materials under the common law right of access.

1. The attorney-client privilege shields the disclosure of documents otherwise accessible under OPRA. K.L. v.

Evesham Twp. Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). The

attorney-client privilege is ordinarily waived when a confidential communication is revealed to a third party, unless

the communication is disclosed to the third party to advance the legal representation. Rawlings v. Police Dep’t of

Jersey City, 133 N.J. 182 (1993). Over the years, various relationships have formed to permit an exchange of

confidential attorney-client communications beyond the narrow confines of the attorney and client and a third party

retained to assist the representation. The common interest rule was first discussed in the context of the attorney-

client privilege In re State Comm’n of Investigation Subpoena No. 5441 (SCI), 226 N.J. Super. 461 (App. Div.),

certif. denied, 113 N.J. 382 (1988). In SCI, the court held that a client’s confidential sharing of a report created by

its attorney in anticipation of litigation with an “interrelated” non-client entity with “a common interest” did not

waive the attorney-client privilege. The Restatement (Third) of the Law Governing Lawyers § 76(1) (2000)

(Restatement) also recognizes that the exchange of confidential information between or among two or more clients

with a common interest in a litigated or non-litigated matter, who are represented by different attorneys, preserves

the privilege against third parties. (pp. 13-20)

2. The work-product doctrine also shields the disclosure of documents otherwise accessible under OPRA. Sussex

Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531 (2012). In most instances, disclosure by an

attorney of his or her protected work product to a third party functions as a waiver of the protection. N.J.S.A.

2A:84A-29; N.J.R.E. 530. In LaPorta v. Gloucester County Board of Chosen Freeholders, 340 N.J. Super. 254

(App. Div. 2001), the Appellate Division applied the common interest rule in the work-product context, concluding

that that the rule may extend the protection of work product shared “among counsel for different parties if (1) the

disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and

(3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties.” Id.

at 262. The panel emphasized that it is not necessary for the interest of every party to be identical; instead, the focus

is whether the parties have a common purpose, measured at the time the protected documents are disclosed. Id. at

262-63. The panel also found it is sufficient that litigation is contemplated, rather than commenced, for the common

interest rule to apply; that the common interest applies in civil or criminal proceedings; and that, in addition to

communication between counsel, the rule protects communication “between counsel for a party and an individual

representative of a party with a common interest.” Id. at 262. Although the common interest rule applies in both the

attorney-client privilege and the work-product context, the scope of protected sharing depends on which privilege

applies because the work-product doctrine permits disclosure to a wider circle of third-parties without waiver of the

privilege than the attorney-client privilege. (pp. 20-32)

3. Access to public documents may also be procured in accordance with the common law right of access. Unlike

OPRA, disclosure pursuant to the common law right of access “must be balanced against the State’s interest in

preventing disclosure.” Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274 (2009). In order to determine whether

the common law right of access applies to a particular set of records, a court must first determine whether the

documents in question are “public records.” Atl. City Convention Ctr. Auth. v. S. Jersey Publ’g Co., 135 N.J. 53

(1994). Second, the party seeking disclosure must show that he has an interest in the public record. If the record is

privileged, the requestor must articulate a “particularized need.” Wilson v. Brown, 404 N.J. Super. 557 (App. Div.)

(citing McClain v. Coll. Hosp., 99 N.J. 346 (1985)), certif. denied, 198 N.J. 473 (2009). Finally, once an interest is

established, the burden shifts to the public entity to establish that its need for non-disclosure outweighs the

plaintiff’s need for disclosure. Educ. Law Ctr., 198 N.J. at 303. (pp. 32-33)

4. The common interest rule is designed to permit the free flow of information between or among counsel who

represent clients with a commonality of purpose. It offers all parties to the exchange the real possibility for better

representation by making more information available to inform decision-making in anticipation of litigation.

Although the Court recognizes that any privilege, including the attorney-client privilege and work-product

protection, restricts the disclosure of information and may intrude on the fact-finding function of litigation, the Court

finds that the rule recognized in LaPorta strikes an acceptable balance of competing interests. The Court, therefore,

expressly adopts the common interest rule as articulated in LaPorta. Common purpose extends to sharing of trial

preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same

litigated matter or anticipated matter. The rule also encompasses the situation in which certain disclosures of

privileged material are made to another attorney who shares a common purpose, for the limited purpose of

considering whether he and his client should participate in a common interest arrangement. (pp. 33-37)

5. The protected attorney work product disclosed by Sufrin to the municipal attorney remained privileged pursuant

to the common interest rule. Sufrin and Longport shared a common purpose at the time of the disclosure because

Longport had defended many civil actions filed against it by O’Boyle and anticipated further litigation from

O’Boyle, and Sufrin was attempting to defend a civil action commenced by O’Boyle arising out of one client’s

official position and others’ participation in civic affairs. Sufrin also disclosed his work product in a manner

calculated to preserve its confidentiality. There is no evidence that the municipal attorney shared the material with

anyone else, including O’Boyle. Once the municipal attorney declined to enter a joint defense strategy, he returned

the privileged material, thereby minimizing even an inadvertent disclosure. Finally, although privileges may be

overcome by a showing of particularized need under the common law right of access, O’Boyle failed to demonstrate

a particularized need for the privileged material supplied to the municipal attorney. (pp. 37-39)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and ALBIN and JUDGE RODRÍGUEZ

(temporarily assigned) join in JUDGE CUFF’s opinion. JUSTICE PATTERSON did not participate.

2

SUPREME COURT OF NEW JERSEY

A-16 September Term 2012

070999

MARTIN E. O'BOYLE,

Plaintiff-Appellant,

v.

BOROUGH OF LONGPORT, and

THOMAS HILTNER in his

capacity as Borough of

Longport Clerk and Custodian

of Records,

Defendants-Respondents.

Argued November 18, 2013 – Decided July 21, 2014

On certification to the Superior Court,

Appellate Division, whose opinion is

reported at 426 N.J. Super. 1 (2012).

Jonathan R. O'Boyle, a member of the

Pennsylvania bar, and Walter M. Luers argued

the cause for appellant (Mr. Luers,

attorney).

Gene R. Mariano argued the cause for

respondents (Parker McCay, attorneys; Stacy

L. Moore, Jr., on the brief).

Matthew T. Nelson, a member of the Michigan

bar, argued the cause for amicus curiae DRI-

The Voice of the Defense Bar (Goldberg

Segalla, attorneys; Mr. Nelson, Michael J.

Leegan, and Mary Massaron Ross, a member of

the Michigan bar, on the brief).

Thomas Hoff Prol argued the cause for amicus

curiae New Jersey State Bar Association

(Paris P. Eliades, President, attorney; Mr.

McCann, of counsel; Mr. Prol and Mr. McCann,

on the brief).

Jeffrey S. Mandel argued the cause for amici

curiae Association of Criminal Defense

Lawyers of New Jersey and The National

Association of Criminal Defense Lawyers

(PinilisHalpern, attorneys; Mr. Mandel and

Jenny E. Carroll, on the brief).

Edward J. Fanning, Jr., submitted a brief on

behalf of amicus curiae New Jersey Defense

Association (McCarter & English, attorneys;

Mr. Fanning and Roktim Kaushik, on the

brief).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

This appeal allows the Court to address the application of

the common interest rule, which extends the confidentiality of

attorney-client communications and attorney work product to

information shared with attorneys representing separate clients,

in the context of a request for production of public records

pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1

to -13, and the common law right to access government records.

Although the common interest rule has been addressed in two

published Appellate Division opinions, this is the first

opportunity for this Court to address the rule.

Martin E. O’Boyle is a resident of the Borough of Longport

(Borough or Longport), a small, oceanside town in Cape May

County. We discern from the record that he has taken an active

interest in the affairs of the municipality in the course of

which he has attended public meetings, questioned public

2

officials, and offered comments on matters of public interest.

He also has made many requests for access to public records

pursuant to OPRA and the common law right of access, and filed

several complaints against the Borough and its officials

regarding governance of the Borough. In 2008 and 2009, O’Boyle

filed separate lawsuits against a former planning and zoning

board member, Peter Isen,1 and two Longport residents, Frank

DiLorenzo, Sr. and Anthony DiLorenzo, Sr.

The private attorney representing Isen and the Longport

residents suggested to the municipal attorney that they

cooperate in the defense of current and anticipated litigation

filed by O’Boyle. To that end, the private attorney prepared a

joint strategy memorandum and a compendium of documents

contained on CDs and sent them to the municipal attorney. In

time, the municipal attorney returned the assembled documents to

the other attorney.

O’Boyle submitted OPRA and common law right of access

requests to the Borough Clerk. The requests encompassed the

documents exchanged between the private attorney and the

municipal attorney. Longport filed a timely response producing

all but six documents exchanged between the private attorney and

the municipal attorney. Longport asserted that those documents

1

The Appellate Division affirmed an order granting summary

judgment and dismissing O’Boyle’s defamation action against Isen

in an unpublished September 2011 opinion.

3

were privileged. O’Boyle filed a complaint in the Superior

Court to obtain the withheld documents. The trial court

dismissed the case with prejudice, determining that the withheld

documents were not public records subject to production pursuant

to OPRA or the common law right of access. On appeal, the

Appellate Division assumed that the withheld documents were

public records, and concluded the exchanged documents

constituted work product of the private attorney and were not

subject to production. The panel invoked the common interest

rule, concluding that the municipal residents and the former

municipal official represented by the private attorney and

Longport shared a common interest that permitted non-disclosure

of the withheld documents.

After examining the arguments presented by the parties and

amici to either broaden, narrow, or restate the common interest

rule as expressed in LaPorta v. Gloucester County Board of

Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001), we

decline to do so. Rather, we expressly adopt the common

interest rule as articulated in LaPorta. We also conclude that

the Appellate Division properly determined that the parties to

the pending and anticipated O’Boyle litigation shared a common

purpose and that O’Boyle failed to demonstrate a particularized

need to access the shared work product. Therefore, neither OPRA

4

nor the common law permits access to the shared work product,

and we affirm the judgment of the Appellate Division.

I.

On April 23, 2010, O’Boyle requested copies of certain

designated records pursuant to OPRA and the common law right of

access. On May 4, 2010, Longport supplied some documents but

refused to produce the following documents:

1) An August 20, 2009 letter from the

municipal attorney to David Sufrin, counsel

for Isen and the Longport residents;

2) A September 18, 2009 letter from Sufrin

to the municipal attorney captioned

“Confidential: Joint-Defense Strategy

Memorandum – Attorney Joint Defense Work

Product not for Disclosure to Third

Parties”;

3) A September 29, 2009 letter from Sufrin

to the municipal attorney captioned

“Confidential Joint-Defense Attorney Work

Product”;

4) A second September 29, 2009 letter from

Sufrin to the municipal attorney accompanied

by two CDs;

5) An undated letter from Sufrin to the

municipal attorney reviewed by the municipal

attorney on October 20, 2009; and

6) The contents of a third CD Sufrin

provided to the municipal attorney reviewed

by the municipal attorney on October 14,

2009.

Longport claimed the withheld documents were privileged, and

further noted that those documents were not in Borough custody

5

because the municipal attorney had returned the CDs to Sufrin

before O’Boyle filed his OPRA request.

O’Boyle filed a verified complaint in the Superior Court

seeking access to the withheld documents pursuant to OPRA and

the common law right of access. The trial court conducted an in

camera review of the correspondence and held oral argument.

Although the court characterized the correspondence as

“relatively short, innocuous letters” of no interest to O’Boyle,

the court also determined that neither the correspondence nor

the CDs were public records and that they were protected by the

attorney-client privilege. Furthermore, the trial court

concluded it could not compel Sufrin to disclose the returned

CDs because he was not an agent of the municipality. Therefore,

the court dismissed the complaint and sealed the correspondence.

On appeal, the Appellate Division affirmed the trial

court’s order. In a published opinion, O’Boyle v. Borough of

Longport, 426 N.J. Super. 1 (App. Div. 2012), the appellate

panel did not resolve whether the requested documents were

public records pursuant to OPRA. Rather, assuming the requested

documents were public records, the panel determined that the

documents were of the sort protected by the work-product

doctrine and that OPRA does not abrogate any grant of

confidentiality recognized by statute, court rule, or common

law. Id. at 8-9. Furthermore, the appellate panel recognized

6

that the common interest rule applies with equal force to

communications protected by the attorney-client privilege and

the work-product doctrine. Id. at 9-10. Noting that Sufrin’s

clients had been sued by O’Boyle as a result of their connection

to the Borough and their involvement in governance of the

Borough, and that the Borough reasonably anticipated further

litigation with O’Boyle, the panel concluded that “Sufrin’s

clients and these defendants . . . share a common interest . . .

i.e., the defense of litigation spanning several years initiated

by [O’Boyle] related to his ongoing conflicts with Longport and

individuals associated with the municipality.” Id. at 11-12.

Therefore, the Appellate Division determined that the letters

and CDs were protected by the work-product doctrine and that

OPRA did not require access by O’Boyle to these documents. Id.

at 12.

The Appellate Division also concluded that the withheld

documents were not subject to production pursuant to the common

law right of access. Id. at 13. Although the common law right

includes more documents as public records, the panel determined

that the letters and CDs produced by Sufrin were not public

records. Ibid. Furthermore, the municipal attorney’s letter to

Sufrin was not written “in the exercise of a public function.”

Ibid. Assuming, however, that the letter from the municipal

attorney could be considered a public document because it was

7

written to further the interest of the municipality, the

Appellate Division concluded that O’Boyle’s interest in access

to the letter did not overcome Longport’s interest in

withholding documents considered by its attorney in anticipation

of litigation with the requestor. Id. at 13-14. Finally, the

panel concluded that the trial court was not required to view

the contents of the CDs. Id. at 14. The panel reasoned that

the documents returned to Sufrin had not been prepared by him at

the behest of the municipality or the municipal attorney. Ibid.

Furthermore, the documents had been returned to Sufrin in

compliance with his request rather than a desire to shelter

otherwise producible documents. Ibid. The Court granted

O’Boyle’s petition for certification. 212 N.J. 431 (2012).

II.

A.

O’Boyle contends that the withheld records are government

records pursuant to OPRA. Indeed, he contends that almost every

record generated by employees of a public entity, with the

exception of “junk mail” and personal exchanges between

municipal employees, are government records. He argues that

OPRA reaches documents prepared and maintained by third parties

acting as agents of a public entity. O’Boyle urges that the

analysis must focus on the scope of the authority of the public

entity agent, not his or her title. Employing this analysis

8

leads to the conclusion that documents received by the municipal

attorney must be considered government records. Furthermore,

O’Boyle contends that the withheld documents clearly fall within

the broad common-law definition of public records.

O’Boyle urges that the Appellate Division’s interpretation

of the common interest rule is too broad. He asserts that the

rule should be limited to situations in which the parties “have

strictly legal interests in the same transaction or occurrence;

and protect only those communications which are related to and

in furtherance of those interests.” Furthermore, O’Boyle argues

that the common interest rule articulated in LaPorta is vague

and does not clearly define when parties have the requisite

relationship to permit sharing confidential communications. By

contrast, he asserts that the rule he advances will “smother

uncertainty” and prevent inadvertent disclosure of confidential

communications.

O’Boyle also contends that this Court should affirm the

current law in this State that disclosure of work product waives

the privilege “unless the disclosure is specifically protected

by law.” He contends that Sufrin voluntarily shared the

materials with the municipal attorney with little or no regard

for the OPRA implications of his action and in a manner that

substantially increased the likelihood of distribution to third

parties, such as him. Finally, he suggests that the purported

9

basis of the common interest rule was negated when Longport

declined the cooperation overture.

B.

Longport and Thomas Hiltner, the Borough Clerk and

Custodian of Records, argue that the trial court properly denied

access to the withheld documents. First, they contend that the

documents prepared by a third party in the course of

representing private individuals are not public records within

the scope of OPRA or the common law right of access. Second,

Longport and Hiltner argue that the records obtained by the

attorney representing Longport are not subject to disclosure

because they are subject to the privilege accorded to attorney-

client communications and attorney work product. They contend

the documents were prepared in anticipation of litigation and

the brief review by the municipal attorney did not convert those

documents into public records subject to review pursuant to OPRA

or the common law right of access. Finally, Longport and

Hiltner contend that the return of the documents to Sufrin at

his request precluded production of the requested documents.

C.

Amicus curiae New Jersey State Bar Association (NJSBA)

requests that the Court provide “the widest berth by which

attorneys can advocate for their clients in free and unburdened

fashion without fear they are susceptible to having their

10

thoughts and ideas made accessible and used against them by an

adversary.” NJSBA urges that attorneys “should be reasonably

unfettered” when they work with other attorneys with mutual

interests and common goals to pursue a litigation strategy

designed to benefit the interests of their clients. To that

end, NJSBA urges that documents exchanged between private

counsel representing a former municipal official and others

involved in municipal affairs and the municipal attorney should

enjoy the protection afforded by the common interest rule,

whether the exchange implicates the attorney-client privilege or

the companion work-product doctrine.

Furthermore, NJSBA argues that the protection afforded by

the common interest rule or joint defense doctrine2 should not

depend on a written agreement between or among the attorneys.

Rather, such an agreement may be readily implied by the efforts

undertaken by the participating attorneys to assure non-

disclosure to adverse parties.

Amici Association of Criminal Defense Lawyers of New Jersey

(ACDL-NJ) and the National Association of Criminal Defense

Lawyers (NACDL) argue that the Court should interpret the joint

defense doctrine to include exchanges of information between

attorneys that are intended to be confidential and that are

2

The terms “joint defense doctrine” and “common interest rule”

are used interchangeably by some.

11

exchanged pursuant to a common interest. The exchanged

information may otherwise be confidential communications between

attorney and client or work product. Amici urge that the

communication must relate to a common interest which may be

legal, factual, or strategic, measured by the interest at the

time the information is disclosed. Furthermore, like NJSBA,

ACDL-NJ and NACDL contend that an agreement to exchange

confidential information or work product need not be reduced to

writing.

Amicus New Jersey Defense Association (NJDA) argues that

the common interest doctrine “finds its origins” in the

attorney-client privilege, that the doctrine has been adopted in

this State, and has been applied in the work-product context.

NJDA asserts, however, that the Appellate Division adopted an

unreasonably broad definition of government records in its

opinion. Amicus contends that documents prepared by private

counsel for a private citizen should not be transformed into a

government record simply by sharing those documents with the

attorney representing the municipality.

Amicus DRI-The Voice of the Defense Bar (DRI) contends that

the Appellate Division appropriately concluded that the

documents withheld by Longport were protected from disclosure.

It observes, however, that the appellate panel followed the

minority rule and “applied the waiver rules governing attorney-

12

client privilege to the work-product doctrine.” It urges that

this Court should affirm the Appellate Division’s result but

adopt the majority approach to waiver of the work-product

doctrine. DRI asserts the majority approach is more conducive

to collaboration and cooperation between and among attorneys.

III.

This appeal addresses the intersection of two well-

recognized public policies. One is the public policy favoring

access to “information to enable the public to understand and

evaluate the reasonableness” of action taken by a public entity.

Kuehne Chem. Co. v. N. Jersey Dist. Water Supply Comm’n, 300

N.J. Super. 433, 438 (App. Div.), certif. denied, 151 N.J. 466

(1997). The other is the need for an attorney and his client to

communicate in confidence and the closely related need for an

attorney to keep work performed for a client from disclosure to

an adversary. OPRA addresses the ability of the public to gain

access to government records. The attorney-client privilege and

the work-product doctrine bestow the confidentiality needed to

foster a client’s best interests. Here, we address the

application of the common interest rule as it applies to the

attorney-client privilege and work-product doctrine and its

impact on the public right to access government records granted

by OPRA and the common law.

13

The Legislature adopted OPRA “‘to maximize public knowledge

about public affairs in order to ensure an informed citizenry

and to minimize the evils inherent in a secluded process.’”

Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury

Park Press v. Ocean Cnty. Prosecutor’s Office, 374 N.J. Super.

312, 329 (Law Div. 2004)). To that end, OPRA “shall be

construed in favor of the public’s right to access.” N.J.S.A.

47:1A-1.

OPRA defines “[g]overnment record” broadly, to include

any paper . . . information stored or

maintained electronically or by sound-

recording or in a similar device, or any

copy thereof, that has been made, maintained

or kept on file in the course of his or its

official business by any officer . . . of

the State . . . , or that has been received

in the course of his or its official

business by any such officer . . . . The

terms shall not include inter-agency or

intra-agency advisory, consultative, or

deliberative material.

[N.J.S.A. 47:1A-1.1.]

This Court has considered “any document kept on file or

received in the course of the official business of an ‘agency’

of a political subdivision [as] a government record.” Fair

Share Hous. Ctr., Inc. v. N.J. State League of Municipalities,

207 N.J. 489, 508 (2011).

Despite the expansive definition of government record, not

all documents prepared by public employees are considered

14

government records pursuant to OPRA. See Bart v. City of

Paterson Hous. Auth., 403 N.J. Super. 609, 617 (App. Div. 2008),

certif. denied, 198 N.J. 316 (2009). For example, a board of

education secretary’s informal, handwritten notes taken during a

board meeting to assist her preparation of formal minutes of the

board meeting are not subject to public access pursuant to OPRA.

See O’Shea v. W. Milford Bd. of Educ., 391 N.J. Super. 534, 536-

38 (App. Div.), certif. denied, 192 N.J. 292 (2007). On the

other hand, a document by a third party, such as a bill for

services prepared by an attorney retained by a public entity and

submitted to it for payment, is subject to public access

pursuant to OPRA. Hunterdon Cnty. Policemen’s Benevolent Ass’n

Local 188 v. Twp. of Franklin, 286 N.J. Super. 389, 393 (App.

Div. 1996).

A government record may be excluded from disclosure by

other statutory provisions or executive orders, N.J.S.A. 47:1A-

9(a), or exempt from disclosure due to a recognized privilege or

grant of confidentiality established in or recognized by the

State Constitution, statute, court rule, or judicial decision,

N.J.S.A. 47:1A-9(b).

The attorney-client privilege is a recognized privilege

that may shield documents that otherwise meet the OPRA

definition of government record from inspection or production.

K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 352-53

15

(App. Div. 2011), certif. denied, 210 N.J. 108 (2012); Gannett

N.J. Partners, L.P. v. Cnty. of Middlesex, 379 N.J. Super. 205,

218 (App. Div. 2005). Documents that fall within the scope of

the work-product doctrine are also shielded from OPRA. Sussex

Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531,

548 (2012).

A.

Confidential communications between a client and his

attorney in the course of a professional relationship are

privileged. N.J.S.A. 2A:84A-20; N.J.R.E. 504. However, the

privilege does not attach to a communication knowingly made

within the hearing of any person whose presence nullifies the

privilege. N.J.R.E. 504(3). In other words, the privilege

protects only those communications expected or intended to be

confidential. Coyle v. Estate of Simon, 247 N.J. Super. 277,

282 (App. Div. 1991).

The privilege is not restricted to legal advice. Rivard v.

Am. Home Prods., Inc., 391 N.J. Super. 129, 154 (App. Div.

2007). The privilege also extends to consultations with third

parties whose presence and advice are necessary to the legal

representation. State v. Davis, 116 N.J. 341, 361 (1989).

Furthermore, the privilege survives the termination of the

attorney-client relationship. Id. at 362. The privilege must

yield, however, in furtherance of “overriding public policy

16

concerns,” United Jersey Bank v. Wolosoff, 196 N.J. Super. 553,

563 (App. Div. 1984), or other important societal concerns, In

re Kozlov, 79 N.J. 232, 243-44 (1979).

The attorney-client privilege is ordinarily waived when a

confidential communication between an attorney and a client is

revealed to a third party. Stengart v. Loving Care Agency,

Inc., 201 N.J. 300, 323 (2010). If, however, the third party is

a person to whom disclosure of confidential attorney-client

communications is necessary to advance the representation,

disclosure will not waive the privilege. Rawlings v. Police

Dep’t of Jersey City, 133 N.J. 182, 196 (1993); State v.

Kociolek, 23 N.J. 400, 413 (1957).

Over the years, various relationships have formed to permit

an exchange of confidential attorney-client communications

beyond the narrow confines of the attorney and client and a

third party retained to assist the defense while preserving the

privileged character of the disclosed communication. The joint

defense agreement between or among individuals subject to a

criminal investigation or indictment is the precursor to the

current common interest rule. See 8 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2024 at 210

(1st ed. 1970). The common interest rule, however, is not

confined to criminal matters. See In re State Comm’n of

17

Investigation Subpoena No. 5441 (SCI), 226 N.J. Super. 461 (App.

Div.), certif. denied, 113 N.J. 382 (1988).

The first discussion of the common interest rule in a

reported decision in this State addressed the rule in the

context of the attorney-client privilege. In SCI, supra, the

State Commission of Investigation subpoenaed a report prepared

by an attorney retained by the New Jersey School Boards

Association (the Association). 226 N.J. Super. at 464. The

Association retained an attorney to conduct an investigation, to

provide legal advice, to make recommendations, and to take steps

in anticipation of litigation arising from alleged improprieties

in the investment procedures of the insurance group created by

the organization. Id. at 463. The attorney prepared a written

report and shared it with the Association, which in turn shared

it with trustees of the insurance group. Id. at 464. Measures

were taken to ensure the confidentiality of the report from

disclosure to anyone outside those carefully delineated and

inter-related groups. Ibid.

The Appellate Division held that sharing the report with

trustees of the Association insurance group did not waive the

attorney-client privilege. Id. at 468. In so holding, the

panel explained that

[t]he two entities are formally

interrelated, the Group having been created

at the instance of [the Association]. The

18

operations of the entities are at least as

closely intertwined as are sister or parent-

subsidiary corporations . . . . Because of

their interrelationships, [the Association]

and the Group have a common interest in the

operation of the Group and the SCI

investigation of the Group. Indeed, [the

attorney] was retained because of [the

Association]’s direct and patent interest in

the operations of the Group.

[Id. at 467-68.]

The Restatement (Third) of the Law Governing Lawyers §

76(1) (2000) (Restatement) recognizes that the exchange of

confidential information between or among two or more clients

with a common interest in a litigated or non-litigated matter,

who are represented by different attorneys, preserves the

privilege against third parties. The rule “permits persons who

have common interests to coordinate their positions without

destroying the privileged status of their communications with

their lawyers.” Id. at § 76(1) cmt. b. In doing so,

the common-interest privilege somewhat

relaxes the requirement of confidentiality .

. . by defining a widened circle of persons

to whom clients may disclose privileged

communications. . . . [Privileged]

communications of several commonly

interested clients remain confidential

against the rest of the world, no matter how

many clients are involved. However, the

known presence of a stranger negates the

privilege for communications made in the

stranger’s presence.

[Id. at § 76(1) cmt. c.]

19

According to the Restatement, supra, the permissible extent

of common interest disclosures is not unlimited. Direct

communications of privileged information between or among the

clients will not retain their privileged character unless made

for the purpose of communication with a privileged person, and

the communication must relate to the common interest which may

be legal, factual, or strategic. Id. at § 76(1) cmts. d. and e.

On the other hand, “[t]he interests of the separately

represented clients need not be entirely congruent.” Id. at §

76(1) cmt. e.

The application of the common interest rule in the context

of the attorney-client privilege in SCI is consistent with the

Restatement rule. To be sure, disclosure of the report prepared

by the Association to its insurance group trustees widened the

circle to whom privileged communications may be made. However,

the Association trustees and the insurance group trustees had a

common interest in identifying any mismanagement in the

insurance program and rectifying any problems.

B.

Documents that satisfy the OPRA definition of government

record are not subject to public access if they fall within the

work-product doctrine. Sussex Commons, supra, 210 N.J. at 542;

K.L., supra, 423 N.J. Super. at 352-53; Gannett, supra, 379 N.J.

20

Super. at 218-19. This doctrine was first recognized in

Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451

(1947). In Hickman, the owners and underwriters of a tug boat

hired a law firm to defend against potential litigation after

the boat sank and five crewmembers drowned. Id. at 498, 67 S.

Ct. at 387, 91 L. Ed. at 455. One of the retained lawyers

interviewed survivors and prepared a report based on his notes

of the interviews. Id. at 498-99, 67 S. Ct. at 387-88, 91 L.

Ed. at 455-56. The Court protected those documents from

discovery, concluding that such materials “fall[] outside the

arena of discovery and contravene[] the public policy underlying

the orderly prosecution and defense of legal claims.” Id. at

510, 67 S. Ct. at 393, 91 L. Ed. at 462.

In justifying the work-product doctrine, the Court

recognized the need for lawyers to “work with a certain degree

of privacy, free from unnecessary intrusion by opposing parties

and their counsel.” Ibid. The Court expressed its concern that

without adequate protection of the product of an attorney’s

work, justice and clients’ best interests would be undermined.

Id. at 511, 67 S. Ct. at 393, 91 L. Ed. at 462. Accordingly,

although the Court acknowledged the importance of discovery of

non-privileged documents to achieve a court’s truth-seeking

function, it determined that “the general policy against

invading the privacy of an attorney’s course of preparation” is

21

so important “that a burden rests on the one who would invade

that privacy to establish adequate reasons to justify

production.” Id. at 512, 67 S. Ct. at 393, 91 L. Ed. at 462.

New Jersey first codified the work-product doctrine in

1948. R. 3:26-2. The rule was considered broader than the rule

recognized in Hickman. Crisafulli v. Pub. Serv. Coordinated

Transp., 7 N.J. Super. 521, 523 (Cty. Ct. 1950); Note,

Discovery: New Jersey Work Product Doctrine, 1 Rutgers L.J. 346,

348-49 (1969).

Today, the work-product doctrine is codified in Rule 4:10-

2. It provides that

[a] party may obtain discovery of documents,

electronically stored information, and

tangible things otherwise discoverable . . .

and prepared in anticipation of litigation

or for trial by or for another party or by

or for that other party’s representative

(including an attorney, consultant, surety,

indemnitor, insurer or agent) only upon a

showing that the party seeking discovery has

substantial need of the materials in the

preparation of the case and is unable

without undue hardship to obtain the

substantial equivalent of the materials by

other means. In ordering discovery of such

materials when the required showing has been

made, the court shall protect against

disclosure of the mental impressions,

conclusions, opinions, or legal theories of

an attorney or other representative of a

party concerning litigation.

[R. 4:10-2(c).]

22

In most instances, disclosure by an attorney of his or her work

product to a third party functions as a waiver of the protection

accorded to an attorney’s work product. N.J.S.A. 2A:84A-29;

N.J.R.E. 530. However, there are circumstances when disclosure

of work product to a third party is entirely consistent with the

confidentiality that is accorded to work product and does not

waive the protection afforded to it. Disclosure consistent with

the common interest rule is one of those circumstances.

In LaPorta, supra, the Appellate Division applied the

common interest rule in a work-product context. 340 N.J. Super.

at 262. The issue arose in a wrongful termination action filed

by a county employee when his public employer refused to

reinstate him following his acquittal of federal criminal

charges not related to his public employment. Id. at 257-58.

At the conclusion of the federal criminal proceedings, material

was remitted to the county counsel, who commenced an additional

investigation of LaPorta’s activities as a public employee.

Ibid. County counsel, in turn, prepared certain documents and

submitted them to the county prosecutor. Id. at 258. No

criminal charges ensued from this investigation. Ibid.

LaPorta, however, subpoenaed documents in the possession of the

county prosecutor in the course of his civil litigation against

the county. Ibid.

23

The Appellate Division held that a memo prepared by the

county counsel about his investigation, a memo from the person

holding LaPorta’s position on a temporary basis to the county

counsel in response to an inquiry from him, and a lengthy

statement given by the county counsel to the county prosecutor

were county counsel’s work product and that the county counsel

did not waive the privilege afforded by the work-product

doctrine when he shared those documents with the county

prosecutor. Id. at 259. In reaching this result, the appellate

panel concluded that

[t]he common interest exception may be

asserted with respect to communications

among counsel for different parties if “(1)

the disclosure is made due to actual or

anticipated litigation; (2) for the purposes

of furthering a common interest; and (3) the

disclosure is made in a manner not

inconsistent with maintaining

confidentiality against adverse parties.”

Holland v. Island Creek Corp., 885 F. Supp.

4, 6 (D.D.C. 1995); see also In re Bevill,

Bresler & Shulman, 805 F.2d 120, 126 (3d

Cir. 1986). It is not necessary for actual

litigation to have commenced at the time of

the transmittal of information for the

privilege to be applicable. U.S. v.

Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989),

cert. denied, 502 U.S. 810, 112 S. Ct. 55,

116 L. Ed. 2d 31 (1991). Indeed,

communications need not only be among

counsel for the clients. Communications

between counsel for a party and an

individual representative of a party with a

common interest are also protected. Ibid.

[Id. at 262.]

24

The panel also emphasized that it is not necessary for the

interest of every party to be identical. Ibid. Instead, the

focus is whether the parties have a common purpose. Ibid.

Application of those principles led to the conclusion that

the documents sought by LaPorta were not subject to production.

Id. at 263. The Appellate Division reasoned that the county

counsel, as the representative of the public employer, and the

county prosecutor shared a common purpose of barring LaPorta’s

reinstatement to public employment because of his perceived

illegal conduct while performing his public duties. Ibid.

Furthermore, whether the parties who share otherwise privileged

communications share a common purpose is measured at the time

the protected documents or communications are disclosed. Ibid.

It is of no moment that the cooperation between the county

counsel and county prosecutor did not yield criminal charges.

Ibid.

C.

Although the common interest rule is firmly rooted in the

attorney-client privilege, Schwimmer, supra, 892 F.2d at 244,

disclosure of work product to third parties with a common

interest may not destroy the privileged character of the work

product. New Jersey applies the common interest doctrine in the

context of sharing confidential communications between an

attorney and client with third parties and in the context of

25

sharing work product with third parties. The test articulated

in LaPorta applies in both contexts.

Most jurisdictions that recognize the common interest rule,3

as well as the Restatement, recognize a wider set of

circumstances in which disclosure of work product to a third

party, including those with a common interest, will preserve the

protection afforded to work product than when the disclosure to

a third party involves confidential communications protected by

the attorney-client privilege. In United States v.

Massachusetts Institute of Technology (MIT), 129 F.3d 681, 687

(1st Cir. 1997), the Court of Appeals observed that disclosure

“outside the magic circle” invariably leads to the conclusion

that the attorney-client privilege has been waived. By

contrast, the work-product privilege or protection is not so

easily waived and the prevailing view seems to extend only to

adversaries, “so only disclosing material in a way inconsistent

with keeping it from an adversary waives work product

protection.” Ibid.; accord Restatement, supra, § 91(4). Thus,

the inquiry considers whether the disclosed material reached an

adversary or whether the disclosure to the third party made it

3

Far less than a majority of state and federal courts have

affirmatively adopted the common interest rule and those that

have done so have not applied it uniformly. See Katharine

Traylor Schaffzin, An Uncertain Privilege: Why the Common

Interest Doctrine Does Not Work and How Uniformity Can Fix It,

15 B.U. Pub. Int. L.J. 49, 52-53 (2005).

26

substantially likely that the protected material would reach an

adversary. The inquiry invariably devolves to an examination of

the nature of the disclosure itself. See, e.g., In re Chevron

Corp., 633 F.3d 153, 165 (3d Cir. 2011).

In Chevron Corp., an expert retained by the plaintiffs in

environmental damages litigation supplied reports, evaluations,

and assessments to a court-appointed global damages expert to

support their claims of environmental damages caused by the

defendant. Id. at 158. The court-appointed expert utilized

some of those documents in his assessment and attached relevant

documents supplied by the plaintiffs’ expert. Id. at 159. The

plaintiffs asserted that the documents were protected by the

work-product privilege. Id. at 164. In assessing this claim,

the Court of Appeals emphasized that “the purpose behind the

work-product doctrine requires [a court] to distinguish between

disclosures to adversaries and disclosures to non-adversaries,

and it is only in cases in which the material is disclosed in a

manner inconsistent with keeping it from an adversary that the

work-product doctrine is waived.” Id. at 165 (internal

quotation and citation omitted). The Court of Appeals concluded

that the submission of the documents by the plaintiffs to the

court-appointed expert occurred in a manner inconsistent with

withholding those documents from their adversary because the

plaintiffs’ submission was designed to influence and convince

27

not only the court-appointed expert but also the defendants of

the merits of its position. Ibid.; see also MIT, supra, 129

F.3d at 687 (holding prior disclosure to defense audit agency of

same information sought by IRS subpoena forfeited work-product

protection); Westinghouse Elec. Corp. v. Republic of Phil., 951

F.2d 1414, 1428 (3d Cir. 1991) (recognizing that disclosure to

third party does not necessarily void work-product protection

unless disclosure enables access by adversary); In re Doe, 662

F.2d 1073, 1081 (4th Cir. 1981), cert. denied, 455 U.S. 1000,

102 S. Ct. 1632, 71 L. Ed. 2d 867 (1982) (contrasting disclosure

of fact or opinion work product to third parties with common

interest and free and voluntary disclosure to third party,

including adversary, demonstrating conscious disregard of

confidentiality provided by work-product doctrine).

D.

The scope or extent of common interests is the subject of

considerable debate. The positions of the parties and amici

reflect this debate. In New Jersey, it is not necessary that

every party share identical interests. LaPorta, supra, 340 N.J.

Super. at 262. It is also not necessary for actual litigation

to have commenced. Ibid. It is sufficient that litigation is

contemplated. Ibid. The common interest may arise in the

context of civil or criminal proceedings. Ibid. (citing In re

Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d

28

244, 249 (4th Cir. 1990)); SCI, supra, 226 N.J. Super. at 466.

Furthermore, the communication need not be confined to counsel.

Communications between counsel for a party and a representative

of another party with a common interest are also protected.

LaPorta, supra, 340 N.J. Super. at 262.

The Restatement, supra, § 76 comment e, addressing the

common interest rule in the context of the attorney-client

privilege, states that “the common interest . . . may be legal,

factual, or strategic in character,” and “[t]he interests of the

separately represented clients need not be entirely congruent.”

See also Restatement, supra, § 91 cmt. b. (addressing common

interest rule in context of work-product doctrine).

Outside of New Jersey, however, courts vary in their

analyses of the common interest rule, resulting in less

certainty concerning its application. Schaffzin, supra, 15 B.U.

Pub. Int. L.J. at 65. Some jurisdictions require that the

interests of the parties be completely congruent in order for a

common legal interest to exist. See SCM Corp. v. Xerox Corp.,

70 F.R.D. 508, 513 (D. Conn.) (“That . . . both parties’

interests converged does not lessen the significance of their

divergent interests. Their interests regarding antitrust

considerations were not sufficiently common to justify extending

the protection of the attorney-client privilege to their

discussion.”), appeal dismissed, 534 F.2d 1031 (2d Cir. 1976);

29

Niagara Mohawk Power Corp. v. Megan-Racine Assocs., Inc. (In re

Megan-Racine Assocs.), 189 B.R. 562, 573 (Bankr. N.D.N.Y. 1995)

(“A common legal interest exists where the parties asserting the

privilege were co-parties to litigation or reasonably believed

that they could be made a party to litigation.”). Others have

stated that it is necessary that every party share identical

interests. United States ex rel. [Redacted] v. [Redacted], 209

F.R.D. 475, 479 (D. Utah 2001) (“A community of interest exists

where different persons or entities have an identical legal

interest with respect to the subject matter of a communication

between an attorney and a client concerning legal advice.”);

Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172

(D.S.C. 1974) (“The key consideration is that the nature of the

interest be identical, not similar.”). Additionally, some

jurisdictions stress that no commonality of legal interest

exists if there is no threat of actual litigation, resting the

analysis on this aspect rather than on the uniformity of

interests. See In re Megan-Racine Assocs., supra, 189 B.R. at

573 (finding legal interest only where pending or reasonably

anticipated litigation exists).

Other jurisdictions disagree whether the common interest

doctrine can protect client-to-client communications. Compare

United States v. Gotti, 771 F. Supp. 535, 545 (E.D.N.Y. 1991)

(finding extension of application of joint defense privilege to

30

conversation among defendants in absence of attorney “is

supported neither in law nor in logic and is rejected”), with

Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965)

(“[W]here two or more persons who are subject to possible

indictment in connection with the same transactions make

confidential statements to their attorneys, these statements,

even though they are exchanged between attorneys, should be

privileged to the extent that they concern common issues and are

intended to facilitate representation in possible subsequent

proceedings.”), and In re Grand Jury Subpoena Duces Tecum Dated

Nov. 16, 1974, 406 F. Supp. 381, 388 (S.D.N.Y. 1975) (“Thus, the

Hunydee opinion -- specifically addressed to a joint conference

situation -- confirmed that the ‘exchange between attorneys,’ .

. . might equally be effected through the clients’ direct

communication as well as through the attorneys’ reciprocal

transfer of documents recording such communications.”). These

numerous differences among jurisdictions reflect the lack of

uniformity concerning the scope of the common interest doctrine.

Professor Schaffzin has suggested a uniform rule to

alleviate uncertainty. Schaffzin, supra, 15 B.U. Pub. Int. L.J.

at 86-90. She suggests that the shared common interest should

be “a legal, rather than a purely commercial interest,” id. at

72, and further advocates that a uniform common interest rule

should require “that the parties’ shared legal interest be

31

common but not necessarily identical,” id. at 73. Such a rule

would focus a court’s consideration of whether parties share a

common legal interest “on the nature of the communication and

the general purpose for which it is shared, rather than on the

relationship of the parties.” Ibid. Finally, because the

common interest rule derives from the attorney-client privilege,

it is of no matter whether the disclosure occurs in anticipation

of litigation or in the course of litigation. Id. at 76.

E.

Access to public documents may also be procured in

accordance with the common law right of access. The right is

broader than OPRA because it encompasses a more expansive class

of documents. Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J.

274, 302 (2009). Unlike OPRA, a person seeking public documents

pursuant to the common law right of access “‘must be balanced

against the State’s interest in preventing disclosure.’” Ibid.

(quoting Higg-A-Rella, Inc. v. Cnty. of Essex, 141 N.J. 35, 46

(1995)). In other words, the party requesting documents must

explain why he seeks access to the requested documents.

In order to determine whether the common law right of

access applies to a particular set of records, a court must

follow a three-step test. First, it must determine whether the

documents in question are “public records.” Atl. City

Convention Ctr. Auth. v. S. Jersey Publ’g Co., 135 N.J. 53, 59

32

(1994). Second, the party seeking disclosure must show that he

has an interest in the public record. Educ. Law Ctr., supra,

198 N.J. at 302. More specifically, if the plaintiff is seeking

“disclosure of privileged records,” such as those protected by

the work-product doctrine, he must show “particularized need.”

Wilson v. Brown, 404 N.J. Super. 557, 583 (App. Div.) (citing

McClain v. Coll. Hosp., 99 N.J. 346, 351 (1985)), certif.

denied, 198 N.J. 473 (2009). In McClain, supra, this Court set

forth a three-part test for determining whether a party has

articulated a particularized need: “1) the extent to which the

information may be available from other sources, 2) the degree

of harm the litigant will suffer from its unavailability, and 3)

the possible prejudice to the agency’s investigation.” 99 N.J.

at 351. Third, once the plaintiff’s interest in the public

record has been established, the burden shifts to the public

entity to establish that its need for non-disclosure outweighs

the plaintiff’s need for disclosure. Educ. Law Ctr., supra, 198

N.J. at 303.

IV.

A.

As related in this opinion, there is considerable debate

among the various jurisdictions, state and federal, regarding

whether the common interest rule should be adopted, and, if so,

on what terms. New Jersey recognizes the common interest rule

33

but some counsel urge that our application of the rule has

either strayed from its roots in the attorney-client privilege

or is too narrowly restricted to disclosures made during

litigation or in anticipation of litigation. Others contend the

common interest rule articulated in LaPorta is too broad. All

agree, however, that the common interest rule does not create a

new privilege. Rather, it permits disclosure of privileged

material, attorney-client confidential communications or work

product, to third parties without waiving any privilege as long

as the applicable features of the common interest rule in the

jurisdiction are satisfied.

Those that disagree with the LaPorta rule urge that the

Court take this opportunity to modify the current rule. We

decline to do so. The common interest rule is designed to

permit the free flow of information between or among counsel who

represent clients with a commonality of purpose. It offers all

parties to the exchange the real possibility for better

representation by making more information available to craft a

position and inform decision-making in anticipation of or in the

course of litigation. In re Grand Jury Subpoenas, supra, 902

F.2d at 249. We acknowledge, however, that how far beyond “the

magic circle” privileged material may be shared depends on

whether the disclosed material is protected by the attorney-

client privilege or the work-product doctrine. Thus, as

34

recognized in the Restatement, sharing of privileged information

of several, even many, commonly interested clients will remain

inviolate as long as a stranger does not intrude. Restatement,

supra, § 76(1) cmt. c. In other words, the actions of the

commonly interested clients and their attorneys must reflect the

privileged status of the communications, including taking

measures to prevent disclosure to an adversary. Compare MIT,

supra, 129 F.3d at 687 (finding that disclosure of billing

statements and corporate minutes containing privileged

communications to audit agency constituted disclosure to

potential adversary), and Westinghouse, supra, 951 F.2d at 1429

(holding that target of investigations which discloses work

product to investigatory agencies waived work-product protection

against all adversaries), with United States v. Am. Tel. & Tel.

Co., 642 F.2d 1285, 1300 (D.C. Cir. 1980) (holding party

assisting Department of Justice investigation of another not an

adversary of agency).

We recognize, however, that any privilege, including the

attorney-client privilege or the protection afforded to work

product, restricts the disclosure of information, even highly

relevant information, and may intrude on the fact-finding

function of litigation. Kociolek, supra, 23 N.J. at 414-15.

Yet, those concerns do not warrant adoption of the most

conservative formulations of the common interest rule, such as

35

requiring that the interests of the parties be completely

congruent or identical, SCM Corp., supra, 70 F.R.D. at 513, or

requiring a threat of actual litigation, see In re Megan-Racine

Assocs., supra, 189 B.R. at 573, or requiring that the common

interest be legal rather than purely commercial, see Schaffzin,

supra, 15 B.U. Pub. Int. L.J. at 72. Rather, we conclude that

the rule recognized in LaPorta strikes an acceptable balance of

these competing interests.

We, therefore, expressly adopt the common interest rule as

articulated in LaPorta. The common interest exception to waiver

of confidential attorney-client communications or work product

due to disclosure to third parties applies to communications

between attorneys for different parties if the disclosure is

made due to actual or anticipated litigation for the purpose of

furthering a common interest, and the disclosure is made in a

manner to preserve the confidentiality of the disclosed material

and to prevent disclosure to adverse parties. LaPorta, supra,

340 N.J. Super. at 262. The disclosure may occur prior to the

commencement of litigation. Ibid. Communications between

counsel for one party and a representative of another party with

a common interest will preserve the privileged nature of the

disclosed information. Ibid. Moreover, the common interest

need not be identical; a common purpose will suffice. Ibid.

36

Common purpose extends to sharing of trial preparation

efforts between attorneys against a common adversary. The

attorneys need not be involved in the same litigated matter or

anticipated matter. Am. Tel. & Tel. Co., supra, 642 F.2d at

1299. Moreover, the rule should be broad enough to encompass

the situation in which certain disclosures of privileged

material are made to another attorney who shares a common

purpose, for the limited purpose of considering whether he and

his client should participate in a common interest arrangement.

Applying these principles to this appeal, we conclude that

the interests of Longport and Sufrin’s clients, a former

municipal official and municipal residents, were not identical

but clearly shared a common purpose. Sufrin was attempting to

defend a civil action commenced by O’Boyle arising out of one

client’s official position and others’ participation in civic

affairs. Longport had defended many civil actions filed against

it by O’Boyle and anticipated further litigation from O’Boyle.

Both Sufrin and Longport had a common purpose to repel further

legal challenges from a citizen who did not agree with the

manner in which elected and appointed officials discharged their

public duties. It is of no consequence that the private

attorney and the municipal attorney did not jointly defend the

pending litigation. The focus must be whether the private

attorney and the municipal attorney shared a common purpose at

37

the time the private attorney shared his work product with the

municipal attorney.

Furthermore, the private attorney’s work product was

disclosed in a manner calculated to preserve its

confidentiality. There is no evidence that the municipal

attorney shared the material with anyone else, including

O’Boyle. Indeed, once the municipal attorney declined to enter

a joint or common defense strategy with Sufrin, he returned the

privileged material, thereby minimizing even an inadvertent

disclosure to O’Boyle. In sum, the joint strategy memorandum,

the CDs containing documents prepared or obtained by Sufrin, and

the associated correspondence were attorney work product.

Disclosure of this material to the municipal attorney did not

destroy the protected character of this material because at the

time of the disclosure, Sufrin and the municipal attorney shared

a common purpose to defend their public and private clients from

pending and anticipated litigation filed by O’Boyle. Therefore,

Longport and the Borough Clerk properly withheld the contested

six categories of documents.

B.

We need not determine whether the material provided to the

municipal attorney became a public record in accordance with the

common law upon receipt from the private attorney. The common

law right of access recognizes privileges, such as the attorney-

38

client privilege, although the privilege may be overcome by a

showing of particularized need. Here, O’Boyle articulated the

interest he had in the material supplied by Sufrin to the

municipal attorney but failed to express a particularized need

for the documents. Having failed to demonstrate a

particularized need for the privileged material supplied to the

municipal attorney, O’Boyle failed to satisfy the common law

standard for access to those documents.

V.

In conclusion, we expressly adopt the common interest rule

as previously articulated in LaPorta, supra, 340 N.J. Super. at

254, 262-63. We also hold that Sufrin, who represented a former

municipal official and private residents in litigation filed by

O’Boyle, shared a common purpose with Longport at the time he

disclosed work product to the municipal attorney. Therefore,

the joint strategy memorandum, and the CDs containing documents

obtained and produced by the private attorney were not

government records subject to production in response to an OPRA

request by O’Boyle. Finally, O’Boyle failed to articulate a

particularized need as required by the common law right of

access to obtain the work product of the private attorney.

VI.

The judgment of the Appellate Division is, therefore,

affirmed.

39

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and

JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s

(temporarily assigned) opinion. JUSTICE PATTERSON did not

participate.

40

SUPREME COURT OF NEW JERSEY

NO. A-16 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

MARTIN E. O’BOYLE,

Plaintiff-Appellant,

v.

BOROUGH OF LONGPORT, and

THOMAS HILTNER in his

capacity as Borough of

Longport Clerk and Custodian

of Records,

Defendants-Respondents.

DECIDED July 21, 2014

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff (temporarily assigned)

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON -------------------- --------------------

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 5