Macey v. Rollins Environmental Services (N.J.), Inc.

• Decision Date: 24 June 1981
• Citation: 179 N.J.Super. 535,432 A.2d 960
• Parties: Bernadette MACEY, etc., et al., Plaintiffs-Respondents, v. ROLLINS ENVIRONMENTAL SERVICES (N.J.), INC., Defendant-Appellant, and Monarch Boiler Construction Co., Inc., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 535

179 N.J.Super. 535

432 A.2d 960

Bernadette MACEY, etc., et al., Plaintiffs-Respondents, v. ROLLINS ENVIRONMENTAL SERVICES (N.J.), INC., Defendant-Appellant and Monarch Boiler Construction Co., Inc., et al., Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued June 2, 1981.

Decided June 24, 1981.

Dennis V. Brenan, Philadelphia, Pa., of the Pennsylvania bar, for defendant-appellant Rollins Environmental Services (N.J.), Inc. (Archer, Greiner & Read, Haddonfield, attorneys; Morgan, Lewis & Bockius, Thomas A. Masterson and Kell M. Damsgard, Philadelphia, Pa., of the Pennsylvania bar, of counsel; Joseph H. Kenney, Haddonfield, on the brief).

Brown, Connery, Kulp, Wille, Purnell & Greene, Camden, for plaintiffs-respondents Harry W. Corcoran, Jr. et al. (Dennis P. Blake, Camden, of counsel and on the brief).

Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, for plaintiffs-respondents Bernadette, Macey and Renee Sharer.

Jones & Lutz, Cherry Hill, for plaintiff-respondent Lawrence Willoughby.

Freeman, Zeller & Bryant, Camden, for plaintiff-respondent Mildred Penick, administratrix ad prosequendum for Denny Simons.

Tuso, Gruccio, Pepper, Buonadonna, Giovinazzi & Butler, Vineland, for defendant-respondent Combustion Engineering, Inc., and Parker, McCay & Criscuolo, Mount Holly, for third-party defendant-respondent Aetna Life & Cas. Co., join in the brief submitted on behalf of plaintiff-respondent Harry W. Corcoran, Jr.

Before Judges MICHELS, KOLE and ARD.

The opinion of the court was delivered by

MICHELS, P. J. A. D.

Pursuant to leave of this court, defendant Rollins Environmental Services (N.J.), Inc. (Rollins) appeals from an order of the Law Division compelling it to produce for inspection a statement prepared by its project engineer at the request of its general counsel. At issue is whether the statement concerning a fire and explosion at the Rollins plant is protected from disclosure by the attorney-client privilege or as a work product material prepared in anticipation of litigation.

On December 8, 1977 an explosion and fire occurred at Rollins' chemical waste disposal plant in Logan Township, New Jersey. Six persons were killed and many others sustained personal injuries. All of the victims were employees of contracting firms working on an expansion program at the plant. The damage centered around the tank farm and incineration area and destroyed a substantial portion of the plant. As a result of the explosion the plant was quarantined for one week and access to the explosion site was severely restricted until April 1978. During the period of quarantine, access was limited to representatives of various federal and state regulatory agencies, including the Occupational Safety and Health Administration, the United States Environmental Protection Agency, the United States Alcohol, Tobacco and Firearms Agency, the United States Center for Disease Control, the New Jersey Department of Environmental Protection, as well as the New Jersey State Police and the Logan Township Police Department. Rollins also conducted an investigation under the direction of its general counsel, John Peet, and its claims director Lynn Moroz. Photographs of the explosion site and statements of the various witnesses and key personnel were taken, including a detailed statement from Rollins' project engineer Robert Slade.

In 1978 or 1979, the various plaintiffs instituted several actions against Rollins and other defendants, seeking to recover both compensatory and punitive damages based on theories of negligence and strict liability in tort. Extensive pretrial discovery, including interrogatories, depositions and inspection of documents, was undertaken by the parties. During the course of discovery proceedings it was ascertained that Slade had prepared a ten-page statement concerning the fire and explosion. Plaintiff Harry W. Corcoran, Jr., ¹ moved to compel the production of the statement, and subsequently other plaintiffs joined in the motion. Rollins objected to its production on the grounds that it was protected from discovery by both the attorney-client privilege and the work-product doctrine. Following a hearing, the trial judge found that the statement constituted a professional communication between an attorney and his client. Nonetheless, the judge ordered its production for the reason that he felt that the public policy favoring full pretrial disclosure outweighed the benefits to be derived from enforcing the attorney-client privilege. The trial judge also held that the work-product doctrine only protected mental impressions, conclusions, opinions and legal theories and analysis, and that all factual statements in the statement were discoverable, and therefore directed the production of the statement for an in camera review so that Slade's impressions, conclusions, opinions or any of his views, legal theories or analysis could be excluded. We disagree and reverse.

The attorney-client privilege, which is the oldest of the privileges for confidential communications, is firmly embedded in our common law. In re Richardson, 31 N.J. 391, 396, 157 A.2d 695 (1960); State v. Toscano, 13 N.J. 418, 424, 100 A.2d 170 (1953); State v. Loponio, 85 N.J.L. 357, 360-361, 88 A. 1045 (E. & A. 1913). While the privilege was not originally embodied in either constitutional or statutory provisions, in 1960 the Legislature incorporated the privilege in our Rules of Evidence. N.J.S.A. 2A:84A-1 et seq. (L.1960, c. 52, art. 1 et seq.). Evid.R. 26 (N.J.S.A. 2A:84A-20), now provides:

(1) General rule. Subject to Rule 37 and except as otherwise provided by paragraph 2 of this rule communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it, and (c) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated, or (iii) as a result of a breach of the lawyer-client relationship, or (iv) in the course of a recognized confidential or privileged communication between the client and such witness. The privilege shall be claimed by the lawyer unless otherwise instructed by the client or his representative; the privilege may be claimed by the client in person, or if incompetent or deceased, by his guardian or personal representative. Where a corporation or association is the client having the privilege and it has been dissolved, the privilege may be claimed by its successors, assigns or trustees in dissolution.

(2) Exceptions. Such privilege shall not extend (a) to a communication in the course of legal service sought or obtained in aid of the commission of a crime or a fraud, or (b) to a communication relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by inter vivos transaction, or (c) to a communication relevant to an issue of breach of duty by the lawyer to his client, or by the client to his lawyer. Where 2 or more persons have employed a lawyer to act for them in common, none of them can assert such privilege as against the others as to communications with respect to that matter.

(3) Definitions. As used in this rule (a) "client" means a person or corporation or other association that, directly or through an authorized representative, consults a lawyer or the lawyer's representative for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity; and includes an incompetent whose guardian so consults the lawyer or the lawyer's representative in behalf of the incompetent, (b) "lawyer" means a person authorized, or reasonably believed by the client to be authorized to practice law in any State or nation the law of which recognizes a privilege against disclosure of confidential communications between client and lawyer. A communication made in the course of relationship between lawyer and client shall be presumed to have been made in professional confidence unless knowingly made within the hearing of some person whose presence nullified the privilege.

"The lawyer-client...