In its recent decision in Am. Zurich Ins. Co. v. Meridia Downtown Urban Renewal Bound Brook, LLC, 474 N.J. Super. 171 (App. Div. 2022), the Appellate Division considered whether civil litigants had offered sufficient proofs to pierce the privilege afforded to the State in keeping its criminal investigation files private.
This case arose from a fire that began at Meridia Downtown’s construction site and spread across the street to an apartment building that was insured by Zurich. Evidently, the fire was caused by arson. Zurich sued Meridia Downtown and its subcontractors in a subrogation action. Zurich alleged that Meridia Downtown and its subcontractors were negligent in securing the property, which allowed the arsonist access. The parties served a subpoena duces tecum on the county prosecutor’s office to obtain the investigative file so that they may obtain information about the cause of the fire. The prosecutor’s office moved to quash the subpoena on the basis that the materials were privileged because the criminal matter was ongoing. The civil parties cross-moved for an Order enforcing the subpoena. The civil trial court denied the prosecutor’s motion to quash and issued an Order compelling the disclosure of a portion of the investigative file.
However, the Appellate Division reversed. The Court held that the State is afforded a significant privilege in relation to investigative files in criminal matters. The privilege arises from an interest in preserving the confidence of witnesses in the privacy of their disclosures. The Court noted that the privilege is not absolute, but requires a balancing of the interest in privacy with considerations of fairness and other compelling factors that outweigh the State’s interest in privacy. A driving factor in this balancing act is the availability of information from other sources. “[M]aximum effort must be made to obtain the materials from other sources before [the] plaintiffs be permitted to invade the archives of the State.” (quoting Greenspan v. State, 174 N.J. Super. 332 (App. Div. 1980). Here, the Appellate Division held that the trial judge failed to balance the competing interests of the State and the civil parties. The Court drew significance to the necessity of the documents sought to establish the case. Herein, the documents were not essential to establish the cause of action in the civil matter. The prosecutor’s office had provided a report that identified witnesses who attested to the condition of the construction site. The report described the footage obtained by the prosecutor, and it expressly stated that the site was only secured on three sides by fencing. Notably, the Court held that the amount of damages is not alone enough to skew the balance in favor of the civil litigants.
In light of this holding, civil litigants must ensure that they are exhausting all avenues of discovery acquisition before they consider compelling the State to open its archives. The threshold for overcoming the State’s privilege is not insurmountable, but requests to do so shall be strictly scrutinized and curtailed.
The Am. Zurich Ins. Co. decision can be found here.
For additional questions, please contact Philip D. Priore, Esq. and/or Scott J. Tredwell, Esq.
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