In a case involving pre-litigation witness statements and the work-product privilege, the Appellate Division recently held that there is no per say rule that materials prepared or collected before litigation are not prepared in anticipation of litigation and held that pursuant to Rule 4:10-2(c), a multi-part, fact specific test must be used in each case.  Paladino v. Auletto Enterprises, Inc., - N.J. Super. – (App. Div. 2019).

In October 2015, plaintiff, Caroline Paladino, fell down a staircase at defendant’s catering facility.  She reported the accident and the defendant’s insurer retained an investigator who spoke with plaintiff about the accident and took a recorded statement.  The investigator also obtained oral statements from two of defendant’s employees, as well as a recorded statement from a third employee.

The trial Court ordered that the statements of the defendant’s employees be produced but the Appellate Division reversed.  The Court held that Rule 4:10-2(c) requires a fact specific test to be used on a case-by-case basis. 

The Court held that the first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representative.  If the materials were prepared in anticipation of litigation, the parties seeking the materials must (1) show a substantial need for the discovery; and (2) demonstrate that he is unable, without undue hardship, to obtain the substantial equivalent of the materials.

The Appellate Division remanded the case to the Law Division to conduct further proceedings to determine whether the witness statements and photographs which had been taken were within the work product doctrine.  The Court reiterated that the work product doctrine does not protect statements that are prepared in the normal course of business, and that the protection of a statement will usually be lost if the person who gave the statement is later called to testify at trial.