NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
On leave granted, plaintiff Stephany Dalton appeals two discovery orders that compel her to produce transcripts she has gathered of testimony that defendants' experts have given in other cases, transcripts she claims are work product because she intends to use them solely to cross-examine the experts. The first order requires that plaintiff identify transcripts in her possession but not information she intends to use at trial. The second order requires that both plaintiff and defendants identify "any prior deposition transcripts of ... experts [they] plan[] to use at the time of trial."
Plaintiff did not establish in the trial court that the transcripts were prepared by or for her in anticipation of litigation or for trial. Consequently, the transcripts in her possession are discoverable. Conversely, her attorney's decisions as to which transcripts to use to cross-examine adverse experts involve the attorney's mental processes, so they are inherently work product. Defendants have not demonstrated a sufficient reason to compel discovery of what are, in effect, the mental impressions and thought processes of plaintiff's attorney. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
I.
This is a medical malpractice case. The facts underlying the parties' discovery dispute are essentially uncontested. Stephany Dalton, individually and in her roles as Administratrix and Administratrix ad prosequendum of the Estate of Derrick Dalton, filed a complaint against defendants Joseph Crawley, M.D., Galen Centeno, M.D., Ditina Ghetia, M.D., Mohsin Zafar, M.D., Muhlenberg Regional Medical Center, Solaris Health System, Inc., and various fictitious individuals and entities. She amended her complaint four times and added defendants, including Bhupendra Patel, M.D., Sundeep Patel, M.D., North Jersey Emergency Physicians, P.A., and Team Health, Inc.
During the deposition of an expert for defendant Mohsin Zafar, Zafar inferred from plaintiff's questions that plaintiff possessed transcripts of testimony the expert had given in another case. Following the deposition, Zafar served plaintiff with a notice to produce "copies of any and all deposition transcripts of [Zafar's expert] in other cases." Plaintiff refused, claiming the transcripts were "attorney work product and we will not be telling you what we have developed regarding this expert." Zafar filed a motion to compel discovery of the transcripts.
While the motion was pending, the attorney representing Drs. Centeno and Ghetia and Muhlenberg Regional Medical Center wrote a letter to the court joining in defendant Zafar's motion and requesting that plaintiff be compelled to produce any transcripts of testimony given by the experts retained on behalf of his clients. In his letter, he explained:
[The decedent] had a rare, virulent and often fatal form of pneumonia, Community Acquired Methicillin Resistant Staphylococcus Aureus ("CA-MRSA"), which differs from more typical types of pneumonia and, before the mid-2000s, was rarely seen in otherwise healthy people. (Exhibit A) Impeachment with statements from cases involving different disease entities could result in misleading testimony and an unjust result. The diagnostic and treatment issues in the prior and present cases may be quite different; the prior statements may be taken out of context; the prior testimony may relate to standards and practices which predate the "arrival" of CA-MRSA; and the expert may not be in a position to explain a legitimate basis for any apparent difference in the his [sic] prior and current testimony. Allowing plaintiff to impeach defense experts in this case with unidentified prior testimony would amount to cross examination by ambush, as it gives the expert no opportunity to review his prior testimony or to explain any apparent discrepancy.
In her opposition to the motions, plaintiff argued that transcripts of testimony given by defense experts in other cases would be used solely to cross-examine those experts in the pending case, and were therefore work product, shielded from discovery by Rule 4:10-2(c). Stressing the truth-seeking aspect of cross-examination, plaintiff further argued that requiring her to produce the transcripts would diminish the effectiveness of cross-examination for impeachment purposes.
Plaintiff noted that Fed. R. Civ. P. 26(a) exempts from the rule's mandatory disclosure requirements the identity of parties and documents when "the use would be solely for impeachment[.]" Plaintiff also cited New Jersey's Uniform Interrogatories, specifically, interrogatory 10 from Form A(1), which requires disclosure of treatises "[u]nless for purposes of impeachment." Interrogatory Forms, Pressler & Verniero, Current N.J. Court Rules, Appendix II to R. 4:17-1 at 2559 (2014).
During oral argument on the motions, counsel for defendant Bhupendra Patel produced an order signed by another judge who had been managing the case but who was unavailable to hear the motion filed by Zafar. The previous order provided, in relevant part, that "plaintiff's counsel is compelled to provide any and all transcripts of the trial and/or deposition testimony of [defendant Bhupendra Patel's expert] as set forth below[.]" Handwritten below the order's signature line was this:
Named [d]eponent, name & [d]ocket of case but [d]efendant not entitled to info as to what [plaintiff's] attorney plans to use at time of [t]rial. [Plaintiff] is precluded from using any [d]eposition document at time of trial where the above info was not provided.
Following oral argument, the motion judge decided to
enter an order identical to [the previous order] with these ... additions. Number 1, the obligation will be reciprocal. Number 2, if you still want a stay, [there will] be a stay of the enforcement of my order and [the previous order].
However, the motion judge did not enter an identical order. Rather, he entered an order requiring all parties to identify "any prior deposition transcripts of ... experts [they] plan[] to use at the time of trial." The judge also extended discovery.
Plaintiff sought leave to file an interlocutory appeal from the two orders, which we granted.
II.
Plaintiff makes the same arguments to us that she made to the trial court. Defendants argue that the transcripts at issue are not work product because they were not prepared in anticipation of litigation or for trial, and because they do not contain the mental impressions, conclusions, opinions, or legal theories of an attorney. Defendants distinguish Fed. R. Civ. P. 26(a) as a situation requiring disclosure of relevant information "without awaiting a discovery request," whereas here the trial court was confronted with a party's refusal to comply with such a request.
Defendants also argue that plaintiff's withholding of the transcripts will likely result in unnecessary waste of time at trial. They suggest that if confronted for the first time at trial with a transcript of prior testimony, an expert will be unable to answer specific questions without first reviewing the transcripts to put the questions in context. Defendants emphasize that this scenario is particularly likely to occur in a complex medical malpractice case such as this, where an expert's testimony in a previous case, quoted out of context, might be entirely inapplicable to the current plaintiff's case.
We begin our analysis by pointing out that when a party challenges a trial court's disposition of a discovery matter, we normally defer to the trial court unless the court has abused its discretion. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997); Hedden v. Kean Univ., 434 N.J.Super. 1, 10 (App. Div. 2013). However, our deference to a trial court's disposition of a discovery matter "is inappropriate if the court's determination ... is based on a mistaken understanding of the applicable law." Payton, supra, 148 N.J. at 559.
In the case before us, plaintiff asserts that the motion judges abused their discretion by disregarding the work-product privilege. Accordingly, our disposition of plaintiff's argument is informed by the purpose of the discovery rules, the policy underlying the protection of an attorney's work product, and the burden of proving either that materials were prepared in anticipation of litigation, Rule 4:10-2(c), or that the rule's exception to non-discoverability applies.
The public policies underpinning our discovery rules include "expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation." Zaccardi v. Becker, 88 N.J. 245, 252 (1982). To further those policies, "[t]he discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments rest upon real merits of the causes and not upon the skill and maneuvering of counsel." Oliviero v. Porter Hayden Co., 241 N.J.Super. 381, 387 (App. Div. 1990).
For those reasons, when materials are relevant to the issues in an action, there is "a presumption of discoverability." Payton, supra, 148 N.J. at 539. Nevertheless, a party can overcome this presumption "by demonstrating the applicability of an evidentiary privilege." Ibid.
One such privilege protects from discovery an attorney's work product. The United States Supreme Court, recognizing the need to protect certain aspects of attorneys' work, explained in the seminal case of Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L. Ed. 451, 462 (1947), that "[p]roper preparation of a client's case demands that [lawyers] assemble information, sift ... relevant from ... irrelevant facts, prepare [their] legal theories and plan [their] strategy without undue and needless interference." The Court noted that such work is often reflected in, among other things, an attorney's mental impressions and personal beliefs, and in "countless other tangible and intangible ways." Ibid.
Nearly thirty years later, our Supreme Court explained that "[m]uch of what was traditionally included as non-discoverable `work product' has in recent years been stripped of its absolute protection." Jenkins v. Rainner, 69 N.J. 50, 54-55 (1976). The Court further explained "that now one is hard put to conceive of any non-privileged relevant material which enjoys an unqualified protection against discovery, that favored status of absolute immunity being reserved for `mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' See Pressler, Current N.J. Court Rules, Comment R. 4:10-2." Id. at 55.
The Court held that "if the industry of counsel ... results in a piece of concrete evidence, such as ... motion picture films ..., then that evidence is not rendered non-discoverable solely because of the `work product' doctrine." Ibid. Reasoning that if the motion picture film at issue were "non-discoverable despite its relevancy and the absence of privilege, it must be by reason of some exception provided for by our discovery Rules[,]" the Court analyzed whether the film was non-discoverable under Rule 4:10-2(c). Ibid.
Rule 4:10-2(c) states:
Subject to the provisions of R. 4:10-2(d), a party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under R. 4:10-2(a) 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 the litigation.
If a party attempts to shield relevant evidence from discovery based on Rule 4:10-2(c), that party has the burden of demonstrating that the privilege applies to particular evidence otherwise discoverable. See Payton, supra, 148 N.J. at 539 ("Although relevance creates a presumption of discoverability, that presumption can be overcome by demonstrating the applicability of an evidentiary privilege."); Seacoast Builders Corp. v. Rutgers, 358 N.J.Super. 524, 551 (App. Div. 2003) (noting that the party claiming the work— product privilege had the burden of persuading the court that the withheld document was work product).
With the foregoing principles and policy considerations in mind, we turn to the first discovery order. That order required plaintiff to produce transcripts in her possession, but not information about which transcripts she intended to use at trial. The order's distinction between transcripts in plaintiff's possession and transcripts she intended to use at trial is significant. Plaintiff failed to carry her burden of demonstrating that the transcripts were non-discoverable work product or prepared in anticipation of litigation. On the other hand, her attorney's decision as to which transcripts to use at trial involved the attorney's mental impressions and were, inherently, work product.
The transcripts themselves did not include the "mental impressions, conclusions, opinions, or legal theories of an attorney ... concerning the litigation." Rainner, supra, 69 N.J. at 55; R. 4:10-2(c). More significantly, "[t]he fundamental test of applicability of the work-product privilege is whether the materials sought to be discovered were prepared in anticipation of litigation rather than in the ordinary course of business[,]" Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:10-2 (2014), not how an attorney intends to use the materials. Here, plaintiff, who had the burden of demonstrating that the transcripts were prepared in anticipation of litigation, did not explain how or when the transcripts had been prepared. The previous testimony was likely recorded either by court personnel or by a court reporter during a deposition, not by or for plaintiff in anticipation of either the commencement or trial of this medical malpractice action.
Plaintiff argues that in view of her intention to use the transcripts solely to cross-examine adverse experts, the transcripts are non-discoverable work product. We disagree. As we have previously explained, asserting that otherwise discoverable material will be used solely for cross-examination does not render the material non-discoverable. When attorneys prepare cases, they routinely gather otherwise discoverable material that they might decide to use when cross-examining adverse witnesses. The test is not how the evidence will be used at trial, but rather whether it was prepared in anticipation of litigation.
The example of video surveillance is illustrative. If a defendant has an investigator surreptitiously record a personal injury plaintiff engaging in physical activity, the film, disc, or other medium is discoverable only if a plaintiff can demonstrate a substantial need for the materials and an inability to obtain the substantial equivalent without undue hardship. See Rainner, supra, 69 N.J. at 57-58; R. 4:10-2(c). On the other hand, when a personal injury claim arises out of an accident recorded by "routine surveillance conducted in the normal course of business, outside the context of litigation, which shows the actual incident[,]" the surveillance tape is discoverable. Herrick v. Wilson, 429 N.J.Super. 402, 406 (Law Div. 2011).1 Withholding discovery in the latter instance is prohibited. See RPC 3.4(a), (c) and (d) (prohibiting a lawyer from unlawfully obstructing another party's access to evidence, knowingly disobeying an obligation under the rules of a tribunal, or failing to make reasonably diligent efforts to comply with legally proper discovery requests). In the latter instance, an attorney's decision to use the recording solely to cross-examine a plaintiff would not shield the recording from discovery.
Plaintiff's citation to Fed. R. Civ. P. 26(a) is unpersuasive. Our Supreme Court has not adopted corresponding rules. Nor has our Supreme Court adopted the federal court requirement that experts maintain a list of cases in which they have testified during the previous four years. See Fed. R. Civ. P. 26(a)(2)(B)(v).
We are also unpersuaded by plaintiff's reliance on interrogatory 10 from Uniform Interrogatory Form A(1), which exempts from disclosure learned treatises that are to be used for purposes of impeachment. Our Supreme Court has not adopted a similar rule that exempts the production of other relevant evidence from disclosure if such evidence is to be used solely for the purpose of cross-examining adverse witnesses. Rather, the non-disclosure of such other evidence is circumscribed by Rule 4:10-2(c).
We recognize that when a party obtains discovery of transcripts in an opposing party's possession, the party discovering the transcripts may be in a better position to anticipate and prepare for an opponent's cross-examination strategy. But that is true for other evidence as well. We expect attorneys to anticipate and prepare witnesses for possible credibility attacks during cross-examination. But the balance between policies underlying our discovery rules on one hand, and the purposes of cross-examination on the other, has been struck by our Supreme Court and is reflected in our discovery rules, in this instance by Rule 4:10-2(c). It is not our place to shift that balance by changing the test of non-discoverability under Rule 4:10-2(c) from whether materials were prepared in anticipation of litigation, to what attorneys say they will do with the materials at trial.
We turn to the second order, which requires all parties to disclose information concerning transcripts they intend to use at trial. We conclude that the judge who entered that order misapplied his discretion by compelling the disclosure of work product.
The second order did not merely require the parties to produce transcripts in their possession, but rather compelled the parties to identify which deposition transcripts they "plan[ned] to use at the time of trial." The order required the parties to produce the results of their attorneys' thought processes and strategies after the attorneys "assemble[d] information, sift[ed] what [they] consider[ed] to be the relevant from the irrelevant facts, prepare[d] [their] legal theories and plan[ned] [their] strateg[ies]." Hickman, supra, 329 U.S. at 511, 67 S. Ct. at 393, 91 L. Ed. at 462.
Aside from the concept of work product, there are practical problems with the order. Although attorneys can be expected to prepare cross-examination strategies before the actual trial, they cannot be expected to know precisely what material they will use to cross-examine witnesses until they hear the witnesses testify. The second order does not appear to apprehend that practical problem.
More importantly, the second order requires, in effect, that the parties disclose the mental impressions and trial strategies their attorneys have developed after studying the transcripts and deciding which transcripts, and which transcript segments, to use for cross-examination. The order contravenes the Supreme Court's pronouncement that attorneys' mental processes remain sacrosanct. Rainner, supra, 69 N.J. at 55. Even under those circumstances in which a court orders discovery of materials prepared in anticipation of litigation or for trial, "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 the litigation." R. 4:10-2(c).
We do not suggest that the protection afforded an attorney's mental impressions, conclusions, opinions, and legal theories is absolute. In rare instances, when compelling public policy considerations dictate the need, even the attorney-client privilege can be pierced. See In re Kozlov, 79 N.J. 232, 243-45 (1979); United Jersey Bank v. Wolosoff, 196 N.J.Super. 553, 563 (App. Div. 1984). In the case before us, however, defendants have not demonstrated a compelling policy consideration or other reason to have plaintiff disclose the mental impressions of her attorney in culling from the transcripts in her possession those that her attorney will or might use to cross-examine defense experts.
For the foregoing reasons, we affirm the first order. We affirm the second order only to the extent that it imposes on all parties the obligation to disclose transcripts of adverse experts that the parties have in their possession. We reverse the remaining provisions of the second order pertaining to discovery of transcripts. Nothing in this opinion precludes any party from seeking other relief, if warranted, after the transcripts are identified.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
