K.L. v. Evesham Tp. Bd. of Educ., 423 N.J. Super. 337 (App. Div. 2011). There are not many published appellate cases in New Jersey that discuss in any detail the attorney-client privilege or the work product doctrine. Though this opinion, written by Judge Ashrafi, is primarily an Open Public Records Act (“OPRA”) case, it is worth reading by everyone because of its discussion of attorney-client and work product. The panel concluded that the attorney-client privilege did not apply, but the public records in question (notes relating to contacts with the father of the plaintiff, a student at an Evesham public school, who seemed likely to sue the school board due to alleged bullying of his child in school) were “attorney work product prepared in anticipation of litigation.” And, “if a document is protected work product under R. 4:10-2(c), it is also protected from disclosure under OPRA.” Judge Ashrafi reached the same conclusion as to plaintiff’s claim under the common law right of access.
Judge Ashrafi also discussed the effect of the new (effective September 1, 2011) “Anti-Bullying Bill of Rights Act,” also known as the Anti-Bullying Act, N.J.S.A. 18A:37-13.1 to -32. That statute was not applicable to this case since it took effect more than eighteen months after plaintiff’s OPRA request. Nonetheless, the panel found it useful to discuss the Anti-Bullying Act because “defendant Board had a ‘harassment, intimidation, and harassment’ policy in effect at the time of plaintiff’s request that duplicated several provisions of the current Anti-Bullying Act.” The Appellate Division did not seem to find anything dispositive in that statute, but its discussion, the first to address the new law in a published opinion, may be useful in future cases.
The Board did produce one document to plaintiff after his OPRA lawsuit was filed. He sought attorneys’ fees for having achieved the production of that one document. The trial court held that no fees could be awarded. The Appellate Division reversed that ruling, finding that plaintiff’s suit was the catalyst for the release of that document. The panel remanded the matter for determination of an appropriate fee.
