NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0779-13T4

BENNETT A. BARLYN,

Plaintiff-Respondent,

v.

PAULA T. DOW, Individually 

and in her official capacity

as Attorney General of New

Jersey; STEPHEN J. TAYLOR,

Individually and in his official

capacity as Director of the New

Jersey Division of Criminal

Justice; DERMOT O' GRADY, 

Individually and in his official

capacity as Acting Hunterdon County

Prosecutor; THE STATE OF NEW JERSEY;

THE OFFICE OF THE ATTORNEY GENERAL;

THE NEW JERSEY DIVISION OF CRIMINAL

JUSTICE; THE COUNTY OF HUNTERDON,

Defendants-Appellants.

_____________________________________________________

Argued January 28, 2014 – Decided

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New 

Jersey, Law Division, Mercer County, Docket 

No. L-0296-12.

Jane A. Greenfogel, Deputy Attorney General, 

argued the cause for appellants (John J. 

Hoffman, Acting Attorney General, attorney; 

Melissa H. Raksa, Assistant Attorney 

General, of counsel; Ms. Greenfogel and 

Kathryn J.H. Boardman, Deputy Attorney 

General, on the brief).

APPROVED FOR PUBLICATION

May 7, 2014

APPELLATE DIVISION

May 7, 2014
2 A-0779-13T4

Robert E. Lytle argued the cause for 

respondent (Szaferman, Lakind, Blumstein & 

Blader, P.C., attorneys; Mr. Lytle, on the 

brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Plaintiff Bennett A. Barlyn filed a two-count complaint in 

the Law Division, Mercer County, naming as defendants 

individually and in their official capacities, Paula T. Dow, who 

at all relevant times alleged in the complaint was Attorney 

General of the State of New Jersey, Stephen J. Taylor, then 

Director of the New Jersey Division of Criminal Justice (DCJ), 

and Dermot O'Grady, an Assistant Attorney General who served 

briefly as acting Hunterdon County Prosecutor. Also named as 

defendants were the State of New Jersey, the Office of the 

Attorney General (OAG), DCJ and the County of Hunterdon (the 

County).1 The complaint alleged that plaintiff was wrongfully 

terminated from his position as an assistant prosecutor in the 

Hunterdon County Prosecutor's Office (HCPO) in violation of 

"clear mandates of public policy." See Pierce v. Ortho Pharm. 

Corp., 84 N.J. 58, 72 (1980) ("An action in tort may be based on 

the duty of an employer not to discharge an employee who refused 

 

1 Other than the County, we refer to the remaining defendants 

collectively as "defendants" throughout the balance of this 

opinion. 
3 A-0779-13T4

to perform an act that is a violation of a clear mandate of 

public policy."). A second count alleged that the individual 

defendants had violated the New Jersey Civil Rights Act, 

N.J.S.A. 10:6-1 to -2 (the CRA). 

Plaintiff filed a motion to compel the disclosure of 

"[g]rand [j]ury materials" from an investigation conducted by 

the HCPO resulting in the indictment of then-Hunterdon County 

Sheriff Deborah Trout, Undersheriff Michael Russo, and Sheriff's 

Office investigator John Falat, Jr. Defendants filed 

opposition, and, after considering oral arguments, the judge 

granted plaintiff's motion. She entered an order requiring 

defendants to provide "a copy of all materials generated by the 

Hunterdon County [g]rand [j]ury in connection with its 

investigation . . . , including but not limited to transcripts, 

exhibits, subpoenaed documents and/or other evidence[.]" 

We granted defendants' motion for leave to appeal. The Law 

Division judge entered a consent order staying production of the 

materials pending our resolution of the appeal. Having now 

considered the arguments made in light of the record and 

applicable legal standards, we reverse.

I.

We set forth in greater detail the assertions made in 

plaintiff's complaint, recognizing that many critical 
4 A-0779-13T4

allegations are contested by defendants. From 1994 until 2007, 

plaintiff served as a Deputy Attorney General in DCJ's Appellate 

Bureau. He was employed by the HCPO as an assistant prosecutor 

between 2007 and August 2010, when he was suspended from his 

duties and subsequently terminated. 

In 2008, under the direction of then-Hunterdon County 

Prosecutor J. Patrick Barnes, the HCPO began an investigation 

into the operations of the Hunterdon County Sheriff's Office 

(HCSO). In his complaint, plaintiff sets forth a number of 

allegations regarding Trout's political connections with the 

administration of Governor Chris Christie, as well as her 

connections to Robert J. Hariri, a local business man "active in 

Republican politics."

Plaintiff asserts that after the gubernatorial election in 

2009, HCPO staff involved in the HCSO investigation personally 

briefed newly-appointed Attorney General Dow about the 

investigation. The Hunterdon County grand jury began to hear 

evidence shortly thereafter. In May 2010, the grand jury 

returned indictments against Trout, Russo, and Falat, charging 

each with multiple counts of official misconduct, N.J.S.A.

2C:30-2, and other crimes. Additionally, the grand jury 

returned a presentment that "discussed non-criminal malfeasance 
5 A-0779-13T4

by other employees of the [HCSO] during the tenure of Trout, 

Russo and Falat."2

Plaintiff alleges that Dow directed Barnes, who was in 

"holdover" status, to submit his resignation effective May 7, 

2010, the same date the vicinage assignment judge had previously 

set for the release of the indictments. Plaintiff claims Barnes 

told others that he was removed specifically because of the 

investigation into the HCSO. Dow immediately appointed O'Grady 

as acting Hunterdon County Prosecutor pursuant to the Criminal 

Justice Act, N.J.S.A. 52:17B-97 to -117. Plaintiff alleges that 

holdover prosecutors in other counties were permitted to remain 

in their positions, and supersession occurred only in Hunterdon 

County.

Plaintiff also claims that shortly after the indictments 

were unsealed, Russo, who was running for sheriff in neighboring 

Warren County, boasted that the governor would intercede and 

"'have this whole thing thrown out.'" The OAG and DCJ also took 

direct control of the prosecution of the indictments, as well as 

physical possession of all evidence from the investigation. 

On August 23, 2010, Deputy Attorney General Christine A. 

Hoffman appeared before the Law Division judge to whom the 

 

2 The indictments are in the appellate record; the presentment is 

not.
6 A-0779-13T4

indictments had been assigned. In a letter to the judge dated 

the same date, Hoffman wrote that the State was seeking 

dismissal "based upon legal and factual deficiencies in the 

indictments against all three defendants." She further stated 

that the grand jurors were given "incorrect instructions . . . 

which . . . tainted the entire deliberative process." As a 

result, "the charges contained in these indictments cannot be 

sustained at trial." Based upon the State's motion, the Law 

Division judge dismissed the indictments.

Plaintiff alleges that on the same day, he told O'Grady 

"dismissal of the indictments was improper, unlawful and 

motivated by a corrupt political purpose." Later that day, the 

Governor nominated Barnes' successor. The following morning, 

O'Grady suspended plaintiff from his duties without explanation. 

Plaintiff claims that O'Grady thereafter organized a "pretextual 

'investigation'" of plaintiff's performance as an assistant 

prosecutor; on September 15, Taylor faxed a letter to 

plaintiff's counsel, terminating plaintiff's employment at the 

HCPO without explanation. 

Plaintiff filed his complaint in the Mercer vicinage on 

February 1, 2012, and defendants filed their answer on December 
7 A-0779-13T4

28.3 On August 5, 2013, plaintiff moved to compel, without 

specification, the production of all "grand jury materials." In 

a supplemental certification, plaintiff's counsel included a 

copy of an amended federal district court complaint filed by 

Trout, Russo and Falat against various HCPO personnel and County 

officials (the federal suit), alleging malicious prosecution and 

violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to 

49.

Before the motion judge, the parties essentially agreed 

that plaintiff's request implicated two issues: 1) whether the 

judge had the authority to consider the motion to compel, or 

whether such a motion needed to be directed to the assignment 

judge for the Somerset/Hunterdon/Warren vicinage (Vicinage 13); 

and 2) whether plaintiff demonstrated release of the grand jury 

materials was proper under the seminal case of State v. Doliner, 

96 N.J. 236 (1984).

The motion judge carefully and thoroughly considered both 

arguments. She concluded that she had authority to decide the 

motion, reasoning that once venue for plaintiff's complaint was 

properly laid in the Mercer vicinage, "exclusive control by the 

assignment judge [of Vicinage 13] [was] relinquished . . . ." 

 

3 This delay is unexplained in the record.
8 A-0779-13T4

After considering the factors enunciated in Doliner, the judge

granted plaintiff's motion and entered the order under review.

II.

Consideration of the issues presented on appeal is guided 

by some abiding principles. "Decisions of trial courts on 

discovery matters are upheld unless they constitute an abuse of 

discretion." In re Custodian of Records, Criminal Div. Manager, 

214 N.J. 147, 162-163 (2013) (citing Pomerantz Paper Corp. v. 

New Cmty. Corp., 207 N.J. 344, 371 (2011)). Therefore, "[w]e 

generally defer to a trial court's disposition of discovery 

matters unless the court has abused its discretion or its 

determination is based on a mistaken understanding of the 

applicable law." Rivers v. LSC Partnership, 378 N.J. Super. 68, 

80 (App. Div.) (emphasis added) (citing Payton v. New Jersey 

Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185 N.J.

296 (2005). We accord no deference to the judge's 

interpretation of applicable law, which we review de novo. In 

re Custodian of Records, supra, 214 N.J. at 163 (citing 

Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)). 

It is well-settled that grand jury proceedings are 

generally secret. State v. Clement, 40 N.J. 139, 142 (1963); 

Doe v. Klein, 143 N.J. Super. 134, 140 (App. Div. 1976); and see

R. 3:6-7 (providing for "secrecy of proceedings of the grand 
9 A-0779-13T4

jury" except for discovery in criminal cases). The Legislature 

requires every grand juror to swear under oath to "keep secret 

the proceedings of the grand jury." N.J.S.A. 2B:21-3. Any 

person who, "with the intent to injure another, purposely 

discloses any information concerning the proceedings of a grand 

jury, other than as authorized or required by law, commits a 

crime of the fourth degree[,]" and is subject to a civil action 

brought by the injured party. N.J.S.A. 2B:21-10(a) and (b).

"The grand jury's duty to uncover criminal wrongdoing and 

screen out charges not warranting prosecution underlies the 

long-standing rule safeguarding the confidentiality of its 

proceedings." In re Application for Disclosure of Grand Jury 

Testimony, 124 N.J. 443, 449 (1991) (ELEC)

4 (citation omitted); 

see also In re Allegations of Official Misconduct, 233 N.J. 

Super. 426, 430 (App. Div. 1989) ("To carry out its dual 

function, [the grand jury] enjoys extraordinary inquisitorial 

and investigative powers, and its proper functioning depends 

significantly upon the concept of secrecy in its proceedings."). 

In Doliner, supra, 96 N.J. at 247, the Court identified five 

public policy reasons favoring secrecy, which we discuss at 

greater length below. 

 

4 The applicant in that case was the Election Law Enforcement 

Commission (ELEC). For ease, we use this acronym hereafter when 

referring to the Court's opinion. 
10 A-0779-13T4

Yet, "notwithstanding the long-established policy of grandjury secrecy, disclosure is permitted in certain circumstances." 

ELEC, supra, 124 N.J. at 451; see also Doe, supra, 143 N.J. 

Super. at 140-41 (the "secrecy of grand jury proceedings is not 

absolute"). The Legislature, for example, has provided that a 

person investigated by a grand jury returning a no bill of 

indictment "may request the grand jury . . . issue a statement 

indicating that a charge against the person was investigated and 

that the grand jury did not return an indictment from the 

evidence presented." N.J.S.A. 2B:21-9(a). A person called 

before a grand jury "may request the grand jury to issue a 

statement indicating that the person was called only as a 

witness in an investigation, and that the investigation did not 

involve a charge against the person." N.J.S.A. 2B:21-9(b). 

Additionally, as noted, our Rules provide for the release of a 

transcript of grand jury proceedings upon the request of an 

indicted defendant, or the prosecutor. See R. 3:6-6(b).

However, as we noted in Doe, supra, 143 N.J. Super. at 141, 

"[t]he rules of civil procedure do not contain a comparable 

provision granting litigants in civil cases access to grand jury 

testimony." "[T]he primary procedural distinction between 

discovery of grand jury proceedings under [the Rules governing 

post-indictment discovery in criminal cases] and under general 
11 A-0779-13T4

legal principles lies in the showing the applicant for discovery 

must make." State v. CPS Chemical Co., 198 N.J. Super. 236, 243 

(App. Div.), motion for leave to appeal denied without 

prejudice, 105 N.J. 502 (1985). In Doe, we said the applicant 

must "demonstrate compelling circumstances or need warranting 

disclosure of grand jury testimony." Doe, supra, 143 N.J. 

Super. at 141. 

"[C]onclud[ing] . . . the principles that underlie federal 

and state grand jury secrecy are identical," the Court in 

Doliner specifically adopted the test enunciated by the United 

States Supreme Court. Doliner, supra, 96 N.J. at 246. The 

applicant seeking disclosure must make "a strong showing of 

particularized need that outweighs the interest in grand jury 

secrecy." Ibid.; see also CPS Chem., supra, 198 N.J. Super. at 

243 ("Doliner makes clear that in the context of related civil 

litigation[,] a party may be afforded access to prior and 

concluded grand jury proceedings where he is able to demonstrate 

that his need outweighs the public interest in grand jury 

secrecy."). In Doliner, the Court cited with approval Douglas 

Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 

60 L.Ed. 2d 156 (1979). Ibid. There, the United States Supreme 

Court described 

the standard for determining when the 

traditional secrecy of the grand jury may be 
12 A-0779-13T4

broken: [p]arties seeking grand jury 

transcripts . . . must show that the 

material they seek is needed to avoid a 

possible injustice in another judicial 

proceeding, that the need for disclosure is 

greater than the need for continued secrecy, 

and that their request is structured to 

cover only material so needed. Such a 

showing must be made even when the grand 

jury whose transcripts are sought has 

concluded its operations . . . . For in 

considering the effects of disclosure on 

grand jury proceedings, the courts must 

consider not only the immediate effects upon 

a particular grand jury, but also the 

possible effect upon the functioning of 

future grand juries.

[Douglas Oil Co., supra, 441 U.S. at 222, 99 

S. Ct. at 1674, 60 L. Ed. 2d at 167

(emphasis added).]

"[T]he standard for determining whether a movant has 

established need sufficient to outweigh the public interest in 

grand-jury secrecy is 'a highly flexible one, adaptable to 

different circumstances and sensitive to the fact that the 

requirements of secrecy are greater in some situations than 

others.'" ELEC, supra, 124 N.J. at 451 (quoting United States 

v. Sells Eng'g, Inc., 463 U.S. 418, 423, 103 S. Ct. 3133, 3149, 

77 L. Ed. 2d 743, 766 (1983)). In balancing a litigant's 

particularized need versus the public interest in grand jury 

secrecy, a court must "take into account the five basic reasons 

for secrecy," CPS Chem., supra, 198 N.J. Super. at 243, which 

are: 
13 A-0779-13T4

(1) To prevent the escape of those whose 

indictment may be contemplated; (2) to 

insure the utmost freedom to the grand jury 

in its deliberations, and to prevent persons 

subject to indictment or their friends from 

importuning the grand jurors; (3) to prevent 

subornation of perjury or tampering with the 

witnesses who may testify before grand jury 

and later appear at the trial of those 

indicted by it; (4) to encourage free and 

untrammeled disclosures by persons who have 

information with respect to the commission 

of crimes; (5) to protect innocent accused 

who is exonerated from disclosure of the 

fact that he has been under investigation, 

and from the expense of standing trial where 

there was no probability of guilt.

[Doliner, supra, 96 N.J. at 247 (quoting 

United States v. Procter & Gamble, 356 U.S.

677, 681 n. 6, 78 S. Ct. 983, 986 n. 6, 2 L.

Ed. 2d 1077, 1081 n. 6 (1958)).]

Because "the reasons for secrecy are primarily related to 

the work of an ongoing grand jury investigation, not the work of 

a grand jury that has concluded its deliberations and returned 

either an indictment or a no bill," the first three factors 

"almost invariably disappear" upon the occurrence of either of 

those events. Ibid. "The fourth factor also will ordinarily 

not constitute a bar to discovery since 'in New Jersey every 

witness is on notice that his or her testimony will be disclosed 

to a defendant on request.'" CPS Chem., supra, 198 N.J. Super.

at 244 (quoting Doliner, supra, 96 N.J. at 247). Doliner's 

fifth factor, however, "is . . . a matter whose applicability 

and effect require evaluation in each instance . . . ." Ibid. 
14 A-0779-13T4

"'[A]s the considerations justifying secrecy become less 

relevant, a party asserting a need for grand jury transcripts 

will have a lesser burden in showing justification.'" Doliner, 

supra, 96 N.J. at 251 (quoting Douglas Oil, supra, 441 U.S. at 

223, 99 S. Ct. at 1675, 60 L. Ed. 2d at 167). 

Defendants concede that the first, second and third Doliner

factors are inapplicable to this case. However, they argue the 

judge failed to fully consider the remaining two factors. The 

judge concluded that factor four did not preclude disclosure, 

essentially adopting plaintiff's argument that, because Trout, 

Russo and Falat no longer worked at the HCSO, anyone who 

provided information to the grand jury was not subject to 

reprisal. The judge determined that factor five was also of 

minimal importance because the indictment had received 

significant notoriety.

We recognize the Court has said that the "importance of the 

fourth factor, encouraging witness cooperation, is minimal at 

best." ELEC, supra, 124 N.J. at 456 (citing Doliner, supra, 96 

N.J. at 247). That assessment is premised on the fact that "in 

New Jersey every witness is on notice that his or her testimony 

will be disclosed to a defendant upon request." Doliner, supra, 
15 A-0779-13T4

96 N.J. at 247.5 Here, plaintiff states that the indictments 

were dismissed before the grand jury materials were furnished to 

Trout, Russo and Falat. While a grand jury witness in New 

Jersey may know that his testimony might be disclosed if an 

indictment is returned, we are not sure that grand jury 

witnesses are armed with an understanding that, in some 

circumstances, their testimony may also be disclosed even if a 

no bill is returned or an indictment dismissed before trial. 

Defendants properly note that because of the unusual 

circumstances presented in this case, witnesses who provided 

information to the grand jury may have their identities exposed, 

even though they will never be called upon to testify in a 

criminal proceeding. We cannot say whether they will be subject 

to the opprobrium of others they know or with whom they work, 

even though the three indicted individuals are no longer 

employed by the HCSO. A court must consider the possible 

chilling effect this might have upon witness cooperation in 

future grand jury proceedings. Douglas Oil Co., supra, 441 U.S.

at 222-23, 99 S. Ct. at 1674-75, 60 L. Ed. 2d at 166-67.

 

5 While we respect the Court's analysis, we are uncertain that 

witnesses appearing before grand juries in New Jersey either 

know or are told that their testimony will be provided upon 

request to the defendant if an indictment is returned, even if 

they are aware in a general sense that they may be called as 

witnesses if there is a trial.
16 A-0779-13T4

As to factor five, defendants argue that although the 

indictment may have received significant media attention, it was 

subsequently dismissed. They contend disclosure of the grand 

jury materials essentially exposes Trout, Russo, and Falat to 

further public accusations without furnishing any forum in which 

to vindicate their reputations, and publicly identifies

witnesses and others who testified or provided information.

Plaintiff counters by arguing that the specific allegations 

were repeatedly discussed in open court, and that the three 

individuals have filed the federal suit that challenges the 

motives behind the investigation that led to their indictments. 

In other words, Trout, Russo and Falat themselves seek to shine 

light upon the grand jury's investigation.6 

In Doliner, the Court concluded that under the specific 

facts presented, the fifth factor "ha[d] little application 

. . . since the indictment of all the defendants . . . moot[ed] 

that issue . . . ." 96 N.J. at 253. Of course in Doliner, it 

 

6 Well after this appeal was argued and immediately prior to the 

filing of our opinion, plaintiff forwarded correspondence 

demonstrating that all parties to the federal suit have sought 

release of the grand jury materials. Trout, Russo and Falat 

served a document production request upon an HCPO detective who 

is a named defendant in the federal complaint. Likewise, the 

defendants in the federal complaint have served a subpoena duces 

tecum upon the OAG. Apparently, the defendants and OAG have 

"postpone[d] the return date of the" subpoena pending the 

issuance of our opinion. 
17 A-0779-13T4

was the defendants, most of whom had pled guilty, who opposed 

release. Factually, this case falls somewhere between Doliner

and ELEC, where the grand jury did not return any indictment 

against the defendants. ELEC, supra, 124 N.J. at 447. In those 

circumstances, the Court "conclude[d] that the protection of 

those exonerated of criminal liability from the consequences of 

disclosure constitutes a significant basis for preserving the 

secrecy of the grand-jury proceedings." Id. at 456 (emphasis 

added). 

When the motion was argued in this case, it was unclear

whether factor five militated for or against disclosure. In our 

minds, the mere fact that the indictments produced much 

publicity would be insufficient to compel disclosure. However, 

we agree that it would be significant to consideration of factor 

five if, as plaintiff now claims, Trout, Russo and Falat have

sought release of the material, or if the grand jury materials 

are released to them in conjunction with the federal suit.

In any event, our decision rests upon reasons other than 

consideration of Doliner factors four and five. Should 

plaintiff make a future application for disclosure, the judge 

will carefully consider those factors based upon the record that 

then exists.
18 A-0779-13T4

In our opinion, plaintiff has failed to demonstrate "a 

strong showing of particularized need that outweighs the

interest in grand jury secrecy." Doliner, supra, 96 N.J. at 246 

(emphasis added). At oral argument before the motion judge, 

plaintiff contended that to properly prosecute his suit, he 

needed to demonstrate that the legal and factual deficiencies 

cited by Hoffman when she sought dismissal of the indictments 

"did not exist." He further argued that these alleged 

deficiencies could only be rebutted if he had "access to the 

same materials that were considered when the State decided to 

dismiss the three indictments." Plaintiff contended that the 

"non-existent [Doliner] secrecy factors are clearly outweighed 

by the relevance of the materials . . . from the grand jury." 

In addressing the issue of "particularized need," the judge 

considered the elements of plaintiff's cause of action under 

Pierce. She found that the grand jury materials would be 

"relevant" to support plaintiff's claim that his termination was 

based upon "well-founded" complaints of corruption, and to 

challenge Hoffman's statement that the indictments were 

deficient. She further noted that evidence supporting such a 

claim typically was circumstantial.

"[P]articularized need is best evaluated by examining the 

character of the materials sought to be disclosed." Doliner, 
19 A-0779-13T4

supra, 96 N.J. at 248. "The critical factor in any disclosure 

of grand-jury information is the material sought[,]" since 

"[t]here are obviously differing degrees of confidentiality that 

attach to different portions of a grand-jury record." ELEC, 

supra, 124 N.J. at 459. Here, plaintiff made no request for 

particular aspects of the grand jury's investigation or 

proceedings. He demanded, and the judge ordered, the release of 

"all materials generated by the . . . Grand Jury in connection 

with its investigation . . . , including but not limited to 

transcripts, exhibits, subpoenaed documents and/or other 

evidence[.]" 

Particularized need also requires that one seeking release 

of grand jury material demonstrate more than the probable 

relevance of the material to the litigation. See, e.g., Sells 

Eng'g, supra, 463 U.S. at 445, 103 S. Ct. at 3149, 77 L. Ed. 2d 

at 766 (reversing the lower court's finding of particularized 

need for disclosure because "its explanation . . . amounted to 

little more than its statement that the grand jury materials 

sought [were] rationally related" to the government's civil 

fraud suit). In Doe, we recognized that a "'compelling 

necessity'" must be shown with "'particularity'"; a showing of 

the material's "'relevancy and usefulness'" would "fall short of 

proof that" the plaintiffs would suffer prejudice or "'an 
20 A-0779-13T4

injustice would be done'" without it. Doe, supra, 143 N.J. at 

142 (quoting Procter & Gamble Co., supra, 356 U.S. at 681, 78 

S. Ct. at 986, 2 L. Ed. 2d at 1081-1082). 

We have also said that "[w]hile application of the test of 

need presents a more difficult and individualized problem, it is 

at least clear that the availability of other routes to the 

discovery of relevant information is a significant 

consideration." CPS, supra, 198 N.J. Super. at 244. We further 

explained

A party to a civil proceeding ordinarily has 

available to him the whole panorama of 

discovery techniques provided for by the 

rules of court. He may find it more timeconsuming or expensive or difficult to 

obtain information by pursuing those routes 

than by reviewing relevant grand jury 

proceedings, but in any event maintenance of 

grand jury secrecy in those circumstances 

will not ordinarily result in an adverse 

impact upon him for which he cannot 

compensate.

[Ibid.]

In Doe, we echoed similar concerns, noting that "the furnishing 

of the transcripts of the grand jury testimony might save 

substantial time and expense, nevertheless, this alone does not 

warrant the lifting of the veil of secrecy accorded grand jury 

proceedings." Doe, supra, 143 N.J. Super. at 143. 

The Court has expressed similar concerns in very different 

circumstances. In ELEC, the Commission sought release of State 
21 A-0779-13T4

grand jury materials that led to a presentment but no indictment 

of the defendants. ELEC, supra, 124 N.J. at 447. "[A]lthough 

[the Court] agree[d] that ELEC has an obvious public purpose in 

securing the grand-jury materials," it "was not persuaded . . . 

that ELEC . . . made a showing of particularized need sufficient 

to outweigh respondents' interest in secrecy." Id. at 457. The 

Court noted that ELEC had made "no attempt to secure any 

evidence through its own discovery authority . . . , nor ha[d] 

it stated with particularity which materials it s[ought] to 

obtain." Ibid. The Court held that "an indispensable 

prerequisite to a governmental agency's ability to show a 

particularized need for grand-jury records is that agency's 

good-faith effort to obtain the desired evidence through its own 

resources and authority." Ibid.

On the other hand, we found the requisite showing of 

particularized need in Caiazza v. Bally Mfg., 210 N.J. Super. 7 

(App. Div. 1985). There, we considered the issue in the context 

of the plaintiffs' wrongful death claims occasioned by a fatal 

fire at Great Adventure Amusement Park in Jackson Township. Id.

at 10. Noting that the "building itself ha[d] been destroyed, 

and the nearly contemporaneous records and testimony gathered by 

the grand jury constitute[d] the best and perhaps only way to 

reconstruct the critical events," we concluded that the 
22 A-0779-13T4

plaintiffs had established a particularized need for the 

materials. Ibid. (emphasis added). 

In this case, we acknowledge without serious debate the 

potential relevancy of the grand jury material, or the 

likelihood that it may lead "to the discovery of admissible 

evidence[.]" See R. 4:10-2. The issue was amply discussed 

before the motion judge and during oral argument before us. To 

the extent defendants argue otherwise, we reject their 

contentions. As noted, however, mere relevancy is insufficient 

to compel disclosure, even if the Doliner factors weigh heavily 

against secrecy concerns.

We were advised at oral argument that at the time the order 

was entered, there had been little discovery exchanged. 

Plaintiff's complaint includes the names of several individuals, 

other than defendants and Hoffman, who he claims have knowledge 

of the investigation of the HCSO and the factual and legal 

sufficiency of the indictments returned. These named

individuals allegedly have information that directly and 

circumstantially supports plaintiff's allegation that dismissal 

of the indictments was politically-motivated. Such information 

would permit an inference that plaintiff had a reasonable basis 

for making his complaint to O'Grady in the first instance, and 

that his termination was unrelated to his job performance. Yet, 
23 A-0779-13T4

the record is devoid of any indication that plaintiff attempted 

to obtain from these persons, or that these individuals refused 

to supply, relevant information. 

There is also nothing in the record that demonstrates 

plaintiff attempted to obtain the contents of the HCPO file of 

the investigation through discovery. We express no opinion 

whether plaintiff would be entitled to compel the release of 

some or all of the file. See, e.g., River Edge Sav. & Loan 

Assoc. v. Hyland, 165 N.J. Super. 540, 543-44 (App. Div.) 

(noting that criminal investigative materials held by the State 

are generally privileged from disclosure, but that the 

"privilege is not absolute"), certif. denied, 81 N.J. 58 (1979). 

We raise the issue only in the context of plaintiff's failure to 

demonstrate a "particularized need" specifically for the grand 

jury materials. 7 

In sum, we reverse the order under review. We do so 

without prejudice to plaintiff's ability to make application to 

the Law Division if, on the record then-existing, he can 

demonstrate a particularized need for some or all of the grand 

jury materials. See ELEC, supra, 124 N.J. at 458 (permitting

 

7 We hasten to add that our conclusion in this regard is strictly 

limited to plaintiff's request and the order under review. Our 

opinion should not be construed as expressing any particular 

position on the requests pending in the federal suit noted in 

footnote six, supra.
24 A-0779-13T4

possible re-application "if, after making the requisite goodfaith effort to obtain the desired evidence, [applicant] remains 

unable to gain access to the information"). In the event 

plaintiff again seeks to compel production of grand jury 

material, the "trial judge shall review in camera each item that 

[plaintiff] seek[s] to have released for discovery purposes to 

make certain that [plaintiff's] needs outweigh the public 

interest in grand jury secrecy." State v. CPS Chem., 105 N.J.

502, 502 (1985).

III.

Defendants argued in the Law Division and before us that 

the motion judge lacked "jurisdiction" to consider plaintiff's 

motion because only the assignment judge for Vicinage 13, or her 

designee, may order release of the grand jury materials at 

issue. Plaintiff contends that no statute, Court Rule or case 

law supports this proposition. With certain exceptions 

discussed below, we agree with plaintiff.

No statute or Court Rule directly addresses the issue, 

although those authorities clearly demonstrate the assignment 

judge's pervasive control of county grand juries in New Jersey. 

"The [a]ssignment [j]udge for each county shall impanel one or 

more grand juries for that county, as the public interest 

requires." N.J.S.A. 2B:21-1; see also R. 3:6-1 (same). The
25 A-0779-13T4

assignment judge, or her designee, conducts the voir dire of 

prospective panel members, hears and decides requests for 

excusal or deferral, rules on objections by the prosecutor to 

prospective jurors based upon partiality or lack of 

qualifications to serve and fills vacancies among the jury as 

they occur. N.J.S.A. 2B:21-2(b), (c) and (d); N.J.S.A. 2B:21-4; 

see also R. 3:6-3(a) (requiring the assignment judge to 

determine whether bias or interest exists and justifies 

excusal), but see R. 3:6-2 (challenges to the array of grand 

jurors or objections to individual grand jurors' qualifications 

shall be heard by a judge designated by the assignment judge). 

The assignment judge selects the foreperson and deputy 

foreperson of the grand jury. R. 3:6-4.

Indictments are "returned in open court to the [a]ssignment 

[j]udge or, in the [a]ssignment [j]udge's absence, to any 

Superior Court judge assigned to the Law Division in the 

county." R. 3:6-8(a). The assignment judge must receive grand 

jury presentments and is responsible for examining any 

presentment, conducting a hearing and ruling on any objections, 

and releasing the presentment to the public. R. 3:6-9 (b), (c) 

and (d). The assignment judge discharges the grand jury, or may 

order its continuance. R. 3:6-10. 
26 A-0779-13T4

Only one of our Court Rules explicitly addresses the 

assignment judge's role in the release of confidential grand 

jury records. Pursuant to Rule 3:6-5, "[t]he record of the vote 

on every count of every indictment and on every presentment 

shall be filed with the clerk of the grand jury[,]" and "shall 

not be made public except on order of the [a]ssignment [j]udge."

Typically, when a plaintiff in a civil suit seeks 

disclosure, venue for the litigation has been laid in the same 

vicinage where the grand jury was empaneled. We agree with 

defendants that motions seeking disclosure in those 

circumstances should be addressed, in the first instance, to the 

vicinage assignment judge. See, e.g., Grill v. City of Newark, 

311 N.J. Super. 149 (Law Div. 1997); Stewart v. Dexter, 218 N.J. 

Super. 417 (Law Div. 1987). However, in this case, Vicinage 13, 

which includes Hunterdon County where the grand jury was 

empaneled, is not where plaintiff's suit is venued. 

Defendants seemingly contend this distinction does not 

matter. They rely upon case law involving indictments returned 

by the State grand jury, which is subject to an entirely 

distinct statutory scheme. See N.J.S.A. 2B:22-1 to -9; R. 3:6-

11. The assignment judge who oversees the State grand jury has 

broad powers, including the ability to designate the county of 

venue for any indictment returned by the panel, and to 
27 A-0779-13T4

consolidate indictments returned by the State grand jury with 

those returned by a county grand jury, and fix the venue for 

trial of both. R. 3:14-1(k); N.J.S.A. 2B:22-7. 

In such circumstances, it matters little where venue is 

laid for the civil action because the State grand jury 

assignment judge, having exercised his or her ability to set 

venue for the criminal case anywhere in the State, should 

logically address issues of disclosure. In other words, seeking 

disclosure of State grand jury materials is more akin to 

situations where the indictment and the civil action are venued 

in the same county than it would be to the circumstances 

presented here. The pervasive statutory and procedural scheme 

that applies to the State grand jury simply does not apply to 

this case, where the indictments were returned by a county grand 

jury in one vicinage, and venue for plaintiff's suit happens to 

be in a different vicinage. 

Putting those distinctions aside, we do not find the cases 

cited by defendants to be persuasive. In CPS Chem., supra, 198 

N.J. Super. at 245, for example, which involved State grand jury 

proceedings, we held that after the Mercer vicinage assignment 

judge who oversaw the State grand jury designated venue for an 

indictment in the Middlesex County vicinage, "all further 

proceedings in the cause, including discovery, [were] within the 
28 A-0779-13T4

control of the trial judge." In denying without prejudice the 

State's motion for leave to appeal, the Court permitted the 

State to apply before the assignment judge in the Mercer 

vicinage for further relief. CPS Chem., supra, 105 N.J. at 

502. However, the Court explicitly provided that such further 

relief "includ[ed] reference of the matter back to the trial 

judge who originally heard the underlying application . . . [and 

who] shall review in camera each item that defendants seek to 

have released for discovery purposes to make certain that 

defendants' needs outweigh the public interest in grand jury 

secrecy." Ibid. In our view, CPS Chem. does not support 

defendants' position that the judge in this case could not 

consider plaintiff's motion to compel disclosure.

Caiazza involved disclosure of materials produced before 

the Ocean County grand jury and transcripts of those 

proceedings. Caiazza, supra, 210 N.J. Super. at 11. A number 

of wrongful death civil suits were consolidated before a single 

judge and venued in Passaic County. Ibid. That judge 

considered the plaintiffs' motion to compel disclosure and 

ordered the civil defendants, who already had the material 

through discovery in the criminal case, to produce it for 

plaintiffs. Ibid. However, he referred that part of the 
29 A-0779-13T4

motion seeking access to the grand jury testimony to the Ocean 

County assignment judge. Ibid. 

"[A]t the same time [the civil] defendants commenced a 

declaratory judgment action, whose venue was laid in Ocean 

County, by which they sought to prevent disclosure. They were 

joined by [nineteen] witnesses who had testified before the 

grand jury and who also sought to maintain secrecy." Ibid. The 

Ocean County assignment judge consolidated all the pending 

matters, dismissed the defendant's declaratory judgment action 

and compelled disclosure of the transcripts. Id. at 12.

Defendants contend that Caiazza supports their position 

that only the assignment judge who oversaw the county grand jury 

can entertain a motion to compel production of grand jury 

material. We must disagree. Although it is unclear whether the 

precise issue was raised by the civil defendants and the grand 

jury witnesses who appealed, we specifically "affirm[ed] both 

orders substantially for the reasons stated by the respective 

trial judges, both of whom properly exercised their respective 

discretion in applying the test for disclosure prescribed by 

[Doliner.]" Ibid. (emphasis added). We also remanded the 

matter for entry of a protective order, not to the Ocean County 

assignment judge, but rather to the Passaic County trial judge. 

Id. at 13. 
30 A-0779-13T4

In short, we find no authority that necessarily prohibits 

the judge to whom the civil litigation is assigned from 

considering a motion seeking to compel disclosure of county 

grand jury material, irrespective of whether the county grand 

jury was empaneled in the same or a different vicinage. This is 

not to say, however, that in certain exceptional situations, a 

party opposing disclosure may seek to transfer consideration of 

the motion to the vicinage where the grand jury was empaneled, 

and the motion judge may decide that transfer is appropriate.

For example, there may be circumstances that arose during 

the term of the particular grand jury that are known only to the 

prosecutor and the assignment judge of the vicinage where the 

grand jury was empaneled. The assignment judge, for example, 

may have considered and ruled upon a particular witness's 

assertion of a privilege. See, e.g., In re Essex Cnty. Grand 

Jury Inv., 368 N.J. Super. 269, 277-78 (Law Div. 2003). If an 

indictment were returned, the defendant might be privy to these 

events through criminal discovery. But, if no indictment were

returned or, as here, where the indictments were dismissed 

before discovery was produced, such an event might heighten 

secrecy concerns.

One way to properly address those issues if they exist is 

for the party seeking disclosure to serve notice of the motion 
31 A-0779-13T4

on the county prosecutor's office that actually presented 

evidence before the grand jury at issue, something that is 

routinely done when venue for the civil suit and the county of 

grand jury empanelment are the same. That was not done in this 

case. Plaintiff only served his motion on defendants, not the 

HCPO.8 

If a party can present specific reasons before the motion 

judge establishing good cause why the vicinage assignment judge 

in another county should hear the motion, then the motion should 

be transferred. Using this case as an example, if, upon notice, 

the HCPO demonstrates good cause why the motion should only be 

considered by the assignment judge in Vicinage 13 or her 

designee, then the Mercer Law Division judge should seek to 

transfer consideration of the motion to her.9

In this particular case, we understand that defendants' 

supersession of the prosecution of the indictments may have 

effectively neutered any meaningful participation by the HCPO, 

 

8 It would appear that plaintiff did not even serve his notice of 

motion upon the County, which was a defendant in the civil 

litigation and clearly had the right to participate before the 

Law Division judge.

9 Rule 4:3-3(a) provides that only the assignment judge of the 

vicinage or her designee can order a change of venue. While 

consideration of the motion to compel need not require a 

complete change of venue for the litigation, it would be better 

practice for the assignment judge of the transferring vicinage 

or her designee to order transfer of the motion to another 

vicinage.
32 A-0779-13T4

but we cannot be certain. We do not believe that alone should 

alter the procedure we set out above in the event plaintiff 

again seeks to compel disclosure of the grand jury material and 

transcripts. Defendants are also free, since they have knowledge 

of all the grand jury material and transcripts, to raise such 

particularized concerns in camera with the motion judge.

If plaintiff makes another motion to compel, it is 

incumbent upon the motion judge, whoever it may be, to conduct 

an in camera review of the grand jury material sought by 

plaintiff before ordering its production. CPS Chem., supra, 105 

N.J. at 502. If the grand jury material has in fact never been 

released, as is alleged here, the judge's in camera review may 

trigger the need to provide notice to witnesses who appeared 

before the grand jury, but whose identities have never been made 

public. 

In Caiazza, several of the nineteen grand jury witnesses 

who opposed disclosure had already testified at the defendant's 

criminal trial, and their grand jury testimony was referenced 

during that trial. Caiazza, supra, 210 N.J. Super. at 11. 

Although we ordered disclosure because the plaintiffs' 

particularized need outweighed secrecy concerns, we nevertheless 

found "some merit in [the] claim respecting the need to protect 

from public opprobrium those witnesses who testified before the 
33 A-0779-13T4

grand jury whose identity has not yet been publicly disclosed." 

Id. at 13. "[T]hese witnesses [were] entitled to privacy to 

the maximum extent consistent with plaintiffs' discovery and 

trial needs." Ibid. We remanded the matter to the trial court

"for . . . entry of an appropriate protective order respecting 

disclosure of the grand jury transcripts which shall be equally 

applicable to all of the parties in the civil litigation." 

Ibid. 

Such a protective order might be appropriate in this case, 

but we cannot say at this juncture. Obviously, plaintiff may 

not know the identity of those witnesses, and therefore cannot 

be charged with the obligation to provide notice. However, the 

county prosecutor would know and be in a position to supply the 

motion judge with the identity of the witnesses so they may be 

notified.10 The judge could conduct a hearing, in camera, to 

consider any particular witnesses' objection and fashion an 

appropriate protective order as necessary.

Reversed. 

 

10 Because of the unusual circumstances as explained, supra, 

defendants might be appropriately charged with the obligation to 

provide notice in this case.