07-2-3662 Falcetti v. Waterfront Comm’n of N.Y. Harbor, N.J. Super. App. Div. (per curiam) (11 pp.) Defendant appealed the order compelling it to produce 194 documents in response to plaintiff’s discovery demands. Plaintiff alleged that defendant wrongfully delayed its investigation concerning his eligibility to work as a longshoreman and he made a discovery request for defendant’s investigation records. Defendant produced 606 pages of documents but claimed an additional 194 documents were privileged, provided a privilege log and asserted the documents were protected under the law enforcement investigatory privilege and/or the attorney work product doctrine. The court found that the trial court’s order showed that it did not consider the privilege log and conduct the proper balancing test, the order lacked findings of fact or conclusions of law, and the determination that plaintiff demonstrated a compelling need for the documents was unsupported by the record. The court remanded the matter and the trial court again granted plaintiff’s motion to compel and provided a conclusory statement that none of the documents were protected by the claimed privileges because they related to status or scheduling or were public records. The court found that the trial court did not make the required findings of fact and conclusions of law, its rulings were unsupported by sufficient facts and it was not possible to discern the documents assessed in the trial court’s balancing test.
46-2-3663 Hyman v Melnichenko, N.J. Super. App. Div. (per curiam) (13 pp.) Plaintiff appealed the summary judgment dismissal of his NJCRA claim, while defendant Borough of Longport cross-appealed the order denying its application for fees and costs under the Frivolous Litigation Statute. Plaintiff, a resident of the borough, was a frequent caller to a local political radio talk show, wherein he would criticize the borough government and accuse the borough’s police department’s officers of abusing their positions. In his complaint against the borough, plaintiff alleged that borough police officers began harassing him in retaliation for his constitutionally protected speech on the radio program. Specifically, plaintiff alleged that the department conducted an inadequate investigation and blocked his efforts to recover property stolen when his home was burglarized. Plaintiff took a recorded statement from a retired borough police lieutenant, who stated that the department went above and beyond for plaintiff and that he was unaware of anyone in the department impeding the investigation. The borough then served plaintiff with a frivolous litigation notice based on the lieutenant’s testimony, demanding plaintiff withdraw his suit. When plaintiff did not withdraw his suit, the borough moved for summary judgment and for an award counsel fees and costs. The trial court the borough summary judgment but denied an award, finding insufficient evidence that plaintiff asserted his claims in bad faith or solely for harassment. On appeal, the court affirmed the trial court’s order, finding that plaintiff’s own evidence contradicted his claim that he was retaliated against for his speech. The court further ruled that the trial court was justified in denying the borough’s application for counsel fees and costs, since plaintiff articulated justifiable reasons for his claim although he lacked sufficient evidence to ultimately prevail, which did not support a finding that plaintiff proceeded in bad faith.
