1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES BAYLISS,

Plaintiff,

v.

NEW JERSEY STATE POLICE, et al.,

Defendants.

Civil Action No. 11-890 (MLC)(LHG)

OPINION AND ORDER

THIS MATTER comes before the Court by motion filed by the New Jersey State Police 

(the “State” or the “NJSP”) on March 8, 2013 [Docket Entry No. 75], seeking an Order 

compelling the return of documents inadvertently produced, and an identification of all those to 

whom the documents at issue were disseminated (the “Clawback Motion”). The Clawback 

Motion is opposed by Defendant Trooper R. Wambold (“Wambold”). [Docket Entry No. 83]

(the “Wambold Brief"). The Court has considered the motion on the submissions without oral 

argument, pursuant to Fed. R. Civ. P. 78. For the following reasons, the motion is GRANTED.

I. BACKGROUND

This case has a somewhat tortured procedural history. For purposes of this Order, the 

Court presumes familiarity with the background and therefore limits the discussion to that 

necessary for an understanding of the issues. 

Plaintiff James Bayliss (“Bayliss” or “Plaintiff”) filed suit in the Superior Court of New 

Jersey on or about January 14, 2011, naming as defendants the NJSP, Wambold and Trooper 

Juckett (“Juckett”). Defendants removed the case to Federal Court on February 17, 2011. 

[Docket Entry No. 1]. After a period in which Plaintiff amended the complaint twice and the 
2

case was stayed for several months in light of then-ongoing criminal proceedings, an initial 

scheduling conference was conducted on March 29, 2012. The parties then commenced 

discovery.

At a status conference conducted on October 24, 2012, the issue currently before the 

Court was first raised. Specifically, the parties addressed a proposed amended pleading that 

counsel for Wambold had circulated at the Court’s instruction, to determine whether there was 

consent for the amendment. During the call, the NJSP raised the fact that the proposed amended 

pleading contained references and quotes from confidential documents that it had not produced, 

referred to as the State Police Review Sheets (the “Review Sheets”). There was discussion as to 

how the documents had come into the possession of Wambold’s counsel. The undersigned 

instructed counsel to have further discussion on the issue in an effort to reach a resolution with 

regard to the use or return of those documents. In the interim, the parties were instructed not to 

further disseminate the documents at issue. 

On November 7, 2012, Bayliss filed the Third Amended Complaint. [Docket Entry No. 

48]. Shortly thereafter, the Court conducted a status conference on November 19, 2012. 

Because the Third Amended Complaint appeared to contain information from the Review 

Sheets, as quoted in the proposed amendment Wambold’s counsel had circulated earlier, the 

Third Amended Complaint was placed under temporary seal. [Docket Entry No. 54]. In the 

Order dated November 27, 2012, counsel were instructed to “meet and confer regarding the 

confidentiality issues arising from the amended answer and determine how to address these 

issues prior to the amended answer being electronically filed.” Id. 

On December 5, 2012, Wambold filed a Motion for Leave to File a Third Amended 

Answer, Counter-Claims, Cross-Claims & Third Party Complaint (the “Motion to Amend”). 
3

[Docket Entry No. 59]. The other Defendants have opposed the motion to amend, on various 

grounds, including that the amendment should not be allowed under the Younger abstention 

doctrine, given that the claims sought to be added are the subject of pending state proceedings. 

[Docket Entry No. 82].

After the Motion to Amend had been filed, the parties notified the Court that they had 

agreed to mediation with retired Superior Court Judge John E. Keefe in an effort to resolve the 

many outstanding issues in the case. They requested that the status quo be maintained while 

they explored settlement. [Docket Entry No. 62]. When mediation proved unsuccessful, the 

Court conducted an in-person status conference on February 13, 2013, at which time the Court 

set a schedule for the filing of the present motion for the return of documents by no later than 

March 8, 2013. 

The Clawback Motion was then timely filed on March 8, 2013. [Docket Entry No. 75]. 

Wambold filed opposition on April 1, 2013. [Docket Entry Nos. 83, 84, 85]. Soon thereafter, 

the parties advised the undersigned that they were again engaging in the mediation process, and 

the Clawback Motion, along with Wambold’s Motion to Amend, were put on hold. 

On August 22, 2013, the Court conducted another status conference, during which 

counsel advised that Bayliss had reached a settlement with all Defendants. Wambold had not, 

however, settled the claims he had raised against the State. The parties discussed the impact of 

the settlement on the issues pending in this matter, including whether this Court has jurisdiction

over any remaining issues, particularly those raised in the Motion to Amend. The Motion to 

Amend was terminated and is to be the subject of further briefing if Wambold intends to pursue 

that motion; otherwise those claims will proceed in state court, where separate actions in which 
4

the same claims have been asserted are already pending. In the interim, the State has indicated 

that it still seeks to have a decision from this Court on the Clawback Motion.

II. LEGAL STANDARD

The issue before the Court is whether the Review Sheets must be returned to the State 

based upon an inadvertent production of documents protected by the deliberative process 

privilege. Fed. R. Civ. P. 26(b)(5)(B) provides in relevant part:

Information Produced. If information produced in discovery is 

subject to a claim of privilege . . . the party making the claim may 

notify any party that received the information of the claim and the 

basis for it. After being notified, a party must promptly return, 

sequester, or destroy the specified information and any copies it 

has; must not use or disclose the information until the claim is 

resolved; must take reasonable steps to retrieve the information if 

the party disclosed it before being notified; and may promptly 

present the information to the court under seal for a determination 

of the claim. The producing party must preserve the information 

until the claim is resolved.

In determining whether documents that have been inadvertently produced must be 

returned, courts utilize a two-step process: first, the court must determine whether the 

documents at issue are in fact privileged. See Peterson v. Bernardi, 262 F.R.D. 424, 427 (D.N.J. 

2009). If the documents are found to be privileged, the court must then decide whether the 

producing party waived that privilege. Id. 

Fed. R. Evid. 502 (b) governs such waiver in a federal proceeding if the documents are 

the subject of the attorney-client privilege or work product doctrine. The rule does not, however, 

specifically reference the deliberative process privilege. At least one other federal court has, 

nevertheless, looked to Rule 502 for guidance in determining the standard for the return of 

inadvertently produced documents protected by the deliberative process privilege. Sikorsky 
5

Aircraft Corp. v. United States, 106 Fed. Cl. 571, 582-583. (Fed. Cl. 2012) (quoting Tigue v. 

United States Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (noting that the deliberative 

process privilege is a “sub-species of work-product privilege”)). Because clear parallels exist

between the policies sought to be fostered by the qualified privileges afforded attorney workproduct and the deliberative process, this Court will also look to Rule 502 for guidance.

Under Rule 502, once it has been established that the documents at issue are privileged,

the party seeking their return must satisfy the three prongs of Rule 502(b) to avoid a waiver: (1) 

the disclosure was in fact inadvertent; (2) the party took reasonable steps to protect the 

confidential information from disclosure; and (3) once the disclosure took place, the holder of 

the privilege acted promptly to secure the return of the documents. 

In this case, the threshold issue of whether the documents at issue are confidential

depends upon the application of the deliberative process privilege. The deliberative process 

privilege is the most frequently invoked form of executive privilege. In re Sealed Case, 121 

F.3d 729, 737 (D.C. Cir. 1997). The purpose of the privilege is to protect the quality of 

government decisionmaking by “prevent[ing] injury to the quality of agency decisions which 

could result from premature or indiscriminate disclosure” of “deliberations comprising part of a 

process by which government decisions and policies are formulated.” Resident Advisory Board 

v. Rizzo, 97 F.R.D. 749, 751 (E.D.Pa. 1983); see also National Labor Relations Board v. Sears, 

Roebuck & Co. (“NLRB”), 421 U.S. 132, 150 (1975); Conoco Inc. v. United States Dep't of 

Justice, 687 F.2d 724, 727 (3d Cir. 1982). The privilege recognizes “that were agencies forced 

to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of 

administrative decisions would consequently suffer.” First Eastern Corp. v. Mainwaring, 21 

F.3d 465, 468 (D.C. Cir. 1994) (quotations and internal ellipses omitted). 
6

That said, “the deliberative process privilege, like other executive privileges, should be 

narrowly construed.” Redland Soccer Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 827, 856 (3d 

Cir. 1995) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir.

1980)). Because the privilege does not protect all communications made by government 

officials, the court must initially determine whether the material the government seeks to protect 

comprises part of a process by which a government agency formed a decision or policy. NLRB, 

421 U.S. at 150. The initial burden of establishing whether the deliberative process privilege 

applies is on the government. Redland, 55 F.3d at 854. 

Accordingly, in the first instance, the court must determine whether the government has 

established a prima facie case that the deliberative process privilege applies. United States v.

Ernstoff, 183 F.R.D. 148, 152 (D.N.J. 1998) To do so, the government must initially show that 

the material sought to be protected is pre-decisional and deliberative. Abdelfattah v. United 

States Dep’t of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007). In order to be pre-decisional, 

the document in question “must concern an anticipated agency decision and have been generated 

prior to the actual decision being reached; it cannot involve a communication concerning the 

decision made after the decision has already been adopted.” United States v. Pechiney Plastics 

Packaging, Inc., No. 09-5692, 2013 WL 1163514, at *13 (D.N.J. March 19, 2013). Further, to 

be deliberative, a document must reflect “advisory opinions, recommendations and deliberations 

comprising part of a process by which governmental decisions and policies are formulated.” 

NLRB, 421 U.S. at 151- 52. In other words, the material must “reflect[] the give and take of the 

consultative process.” New Jersey v. RPI Energy Mid-Atlantic Power Holdings, LLC, No. 07-

5298, 2013 WL 272763, at *1 (E.D.Pa. Jan. 24, 2013) (citing Rizzo, 97 F.R.D. at 753). In 

addition, to the extent that the documents reflect “personal opinions of the writer rather than the 
7

policy of the agency,” such documents are protected by the privilege since disclosure “would 

inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency 

position that which is as yet only a personal position.” Coastal States Gas Corp. v. Dep’t of 

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). 

Because the privilege extends only to deliberative documents, it does not typically apply 

to documents reflecting “compiled factual material or purely factual material contained in 

deliberative memoranda and severable from its context.” Environmental Protection Agency v. 

Mink, 410 U.S. 73, 88 (1973). However, “factual information that itself reveals the deliberative 

process and cannot be severed from the deliberative context is protected.” In re U.S., 321 Fed. 

Appx. 953, 959 (Fed. Cir. 2009). In deciding whether certain material is deliberative, “[c]ourts 

focus less on the nature of the materials sought and more on the effect of the materials' release: 

the key question in [such] cases became whether the disclosure of materials would expose an 

agency's decisionmaking process in such a way as to discourage candid discussion within the 

agency and thereby undermine the agency's ability to perform its functions.” Id. (quoting 

Dudman Commc'ns v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir.1987)). 

Once the government satisfies these threshold requirements, the deliberative process 

privilege is applicable. The court’s inquiry, however, does not end there because the privilege is 

not absolute. Redland, 55 F.3d at 854. Instead, once the agency demonstrates that the privilege 

applies, the party seeking discovery has the opportunity to make a showing of sufficient need for 

the otherwise privileged material. Rizzo, 97 F.R.D. at 753. In that regard, the court must balance 

the need for the documents against the reasons for confidentiality asserted by the government. In 

conducting this balancing test, a court should consider: (1) the relevance of the evidence sought; 

(2) the availability of other evidence; (3) the seriousness of the litigation and issues involved; (4) 
8

the role of the government in the litigation; and (5) the potential for inhibited candor by 

government employees resulting from such disclosure. Redland, 55 F.3d at 854.

III. ANALYSIS

A. Whether the Documents at Issue Are Privileged

i. Whether the Deliberative Process Privilege Applies to the Review 

Sheets: The State’s Prima Facie Case

The State contends that the Review Sheets are subject to the protections of the 

deliberative process privilege. In so arguing, the State relies in large part on the Certification of 

Major David C. Jones (the “Jones Cert.”), the Commanding Officer of the NJSP Office of 

Professional Standards (the “OPS”). [Docket Entry No. 75-2]. In his Certification, Major Jones 

sets forth in detail the process by which the OPS conducts internal investigations of alleged

misconduct. As Major Jones explains, an investigation into alleged misconduct by a trooper is 

performed by an investigating officer. Jones Cert. ¶3. The investigating officer prepares a 

summary of the allegations and the conclusions reached. Id. The investigating officer’s 

completed investigation, the summary of that investigation, and the Review Sheets are forwarded 

through the OPS chain of command for their independent review by supervising members of 

Major Jones’s command staff. Id. The supervising command staff members do not conduct 

their own independent factual investigations. Id. Instead, the command staff members complete 

the Review Sheets, offering their opinions on the investigation. Id. After receipt of the 

investigation, the summary, and the completed Review Sheets, Major Jones formulates a 

recommendation for the Superintendent of the New Jersey State Police. Id. The Superintendent 

renders a decision with respect to proposed disciplinary action. Id.
9

Major Jones asserts that he “rel[ies] heavily upon the candid evaluations of [his] staff 

before submitting [his] recommendation to the Superintendent.” Jones Cert. ¶4. Disclosure of 

Review Sheets “would necessarily have a chilling effect on the candor of the reviewing officers,” 

insofar as “an officer might be unwilling to share a ‘gut feeling’ or some other misgiving, if he 

knows he might be called upon to justify [it] in a deposition or trial.” Jones Cert. ¶¶5-6. Major 

Jones avers that “deny[ing] the Superintendent the free flow of advice from his experienced 

supervisory personnel undermines the public interest, would unreasonably and unnecessarily 

restrict the orderly functioning of the NJSP and negatively affect the administration of the 

trooper disciplinary system.” Jones Cert. ¶6. Major Jones also asserts that the disclosure of the 

Review Sheets in this case is being investigated by OPS and that it was contrary to the rules and 

regulations of the NJSP, which prohibit unauthorized disclosure or dissemination of non-public 

information received or acquired by virtue of members’ official duties. Jones Cert. ¶¶8-9. 

Indeed, such disclosure is a disciplinary offense. Id.

The State has asserted, through Major Jones as the head of OPS, a formal claim of 

privilege over a specific group of documents: the Review Sheets prepared within that 

department as part of the investigation into Wambold’s alleged use of excessive force with 

respect to Plaintiff. Major Jones’s Certification has also set forth a harm to the public interest—a 

chilling of the candor he relies upon from his reviewing officers and the subsequent deprivation 

of advice to the Superintendent—that would occur should the Review Sheets not be returned.

The State also argues that the Review Sheets are both pre-decisional and deliberative. 

With respect to the pre-decisional prong, the State has shown that the Review Sheets are 

prepared by senior members of OPS command staff and forwarded to the head of OPS for 

consideration prior to his recommendation to the Superintendent. With respect to the 
10

deliberative prong, the State has likewise shown that the Review Sheets consist of commentary 

provided by individual OPS command staff members to assist the head of OPS in his efforts to 

advise the Superintendent. The contents of the Review Sheets therefore seem to fall squarely 

within the sort of interior, advisory communications contemplated by the deliberative process 

privilege case law. 

Wambold argues in the first instance that the Review Sheets cannot be privileged because 

the State actually agreed to represent Wambold in defense of the action brought by Bayliss. 

Wambold Brief at p. 7. Essentially, Wambold contends that the Review Sheets are part of the 

State’s file with regard to that representation and therefore should have been turned over to new 

counsel when the State withdrew from representation. 

Wambold further contends that the Review Sheets are neither pre-decisional nor 

deliberative. Id. at pp. 8-9. He points out that the Review Sheets were dated before the first 

NJSP decision, in which it was decided to defend and indemnify Wambold, but that the NJSP 

later changed its mind, finding that Wambold had in fact engaged in the use of excessive force. 

Wambold Brief at p. 9. Thus, Wambold contends, there were two final decisions made by the 

NJSP. Id. 

As a preliminary matter, the Court finds it is reasonable to expect that making the Review 

Sheets public would discourage OPS command staff members from offering their candid 

assessment of future cases, to the detriment of its investigations. Furthermore, the Court finds 

that a distinction must be drawn between the State’s role in investigating the allegations of 

wrongdoing, which was done by the NJSP OPS, and the prior representation of Wambold by the 

New Jersey Office of the Attorney General. That the Attorney General’s office once represented 
11

Wambold in this matter does not mean that otherwise confidential documents of the NJSP OPS 

are no longer privileged and must be turned over.

In addition, insofar as the Review Sheets precede both the OPS recommendation and the 

Superintendent’s decision, the Review Sheets are pre-decisional. The fact that the NJSP changed 

its position with regard to the charges against Wambold does not alter this conclusion. The 

Court therefore finds that the State has articulated a prima facie case for the application of the 

deliberative process privilege to the Review Sheets in this case.

ii. Whether, on Balance, the Review Sheets Are Entitled to Deliberative 

Process Protection

As noted earlier, the deliberative process privilege is not an absolute one. Even once it 

has been found to apply, a party opposing the privilege is entitled to an opportunity to overcome 

the privilege by showing sufficient need. The Court must balance the competing interests, 

following the guidance of the Third Circuit Court of Appeals, which instructs it to consider at 

least the following: (1) the relevance of the evidence sought to be protected; (2) the availability 

of other evidence; (3) the seriousness of the litigation; (4) the role of the government in the 

litigation; and (5) the potential for inhibited candor by government employees resulting from 

such disclosure. Redland, 55 F.3d at 854 (quoting First Eastern Corp. v. Mainwaring, 21 F.3d 

465, 468 n. 5 (D.C. Cir. 1994)).

The NJSP argues that the Review Sheets have no evidentiary significance because the 

commenting officers performed no separate investigation, instead relying on the investigating 

officer's report and recommendation. NJSP Brief at p. 7. [Docket Entry No. 75-1]. As such, 

says the NJSP, the Review Sheets have no additional facts and constitute mere "lay opinions," 

carrying no evidential weight under Fed. R. Evid. 701. NJSP Brief at pp. 10-12. 
12

In contrast, Wambold argues that the Review Sheets are “highly relevant to the within 

matter because the State’s only way to avoid providing Wambold with a defense in the Bayliss

litigation is to assert that Wambold engaged in misconduct. Wambold Brief at 10. Wambold 

goes on to argue in great detail about the State’s initial agreement to defend and indemnify him 

and its later decision to withdraw that defense and indemnification. Thus, much of the argument 

centers on whether the State is “liable to pay for Wambold’s defense fees and costs,” and the 

conflict arising from the State’s failure to do so. Id. at pp. 10-12.

In so arguing, Wambold mistakes what is currently at issue in this case. As currently 

plead, the sole issue before this Court is whether Bayliss has asserted a cognizable excessive 

force claim against the various Defendants. While Wambold contends that the Review Sheets 

are relevant to his claim against the NJSP, that claim is not presently before the Court. It was the 

subject of a motion for leave to amend, which was hotly contested given that the same claim is 

the subject of a pending state proceeding. That motion was terminated in light of the settlement 

between Bayliss and all Defendants and its impact on this Court’s jurisdiction. While Wambold 

has indicated that he may still seek to renew and rebrief his Motion to Amend, the claims he 

would assert through that amendment are not currently part of the case nor is there any certainty 

that they ever will be. Accordingly, they cannot factor into the Court’s consideration of 

relevance with regard to the Review Sheets. 

Indeed, the Court finds that the Review Sheets have no relevance to the issues raised in 

the Bayliss Complaint, i.e., whether or not Bayliss can recover on his claims of excessive force. 

Because the Review Sheets are not relevant, the Court finds that the remaining factors outlined 

by the Third Circuit in Redland weigh in favor of the return of the Review Sheets to the NJSP. 

The State has made a strong argument as to the harm that it would suffer if these internal 
13

deliberative documents were released, particularly with regard to the chilling effect on the candor 

of commenting officers if they knew their opinions would be made public, whereas there has 

been no showing that these documents are even relevant to the issues in this case. 

For the reasons set forth above, the Court finds that the deliberative process privilege 

applies to the Review Sheets in this case. The Court next considers whether the Review Sheets 

should be returned to the State in light of the traditional three-prong test set forth in Rule 502(b).

B. Whether Disclosure of the Review Sheets Constitutes a Waiver of the 

Deliberative Process Privilege

The submissions reflect considerable confusion as to how the Review Sheets were 

originally released. The NJSP speculates that they were inadvertently provided to a different

trooper undergoing disciplinary action in an unrelated matter. Jones Cert. ¶7. According to 

Wambold’s counsel, the Review Sheets were attached to an email sent to an attorney 

representing another trooper in an unrelated matter. Certification of Charles J. Sciarra, Esq. 

(“Sciarra Cert.”) ¶13.

1

[Docket Entry No. 83-2]. Vincent J. Nuzzi, Esq., who represents Juckett 

with regard to disciplinary charges filed against him, also put in a certification [Docket Entry No. 

75-2], in which he discusses his efforts to obtain certain records relating to his client and the fact 

that those documents may have been inadvertently forwarded to another attorney, who then sent 

them to Christopher Burgos, president of the New Jersey State Troopers Fraternal Association. 

Id. ¶8. 

 

1 The Sciarra Certification is attached as an exhibit to the Certification of Matthew R. Curran in this matter, 

but is encaptioned as having been submitted in the action “I/M/O Request for Defense and Indemnification, Bayliss 

v. New Jersey State Police, et al., Docket No. 11-cv-0890,” in the Superior Court of New Jersey, Appellate Division, 

Docket No. A-6043-11T4.
14

While it remains unclear how the documents made it from the NJSP into Wambold’s 

possession, one thing is clear: the disclosure was without authorization and is the subject of an 

investigation being conducted by the OPS. Jones Cert. ¶7. It was also a violation of the rules 

and regulations of the NJSP, and is a disciplinary offense. Id. The Court is therefore satisfied 

that the NJSP disclosure was inadvertent.

Wambold claims that the NJSP failed to take reasonable steps to prevent the disclosure, 

including failing to mark the Review Sheets with a confidential designation. Based on their 

treatment within the NJSP, however, the Review Sheets do not appear to be a class of documents 

ever intended to be released outside the department. As such, they would not necessarily be 

marked as confidential unless and until there was the intention to produce them. Indeed, as noted 

above, dissemination is considered a violation of the rules and regulations that govern the State 

Police, and is an offense that could lead to discipline. Jones Cert. ¶9. In such a case, it is 

credible that marking them as confidential may have seemed redundant given their usage and the 

regulatory strictures already in place. Based on the information in the record, the Court finds 

that the State took reasonable measures to ensure the confidentiality of the Review Sheets.

Wambold further contends that the NJSP delayed by failing to file its Clawback Motion

until approximately ten weeks after the Review Sheets were inadvertently disclosed. Wambold, 

however, ignores that when counsel referenced the Review Sheets in his proposed amended 

pleading, the NJSP responded shortly thereafter, asserting that the documents were privileged

and requesting their return. Sciarra Cert. ¶16. Wambold, through his counsel, refused to return 

the Review Sheets, and “implored them to file an application.” Id. The issue was then addressed 

several times during case management conferences and the undersigned instructed the NJSP and 

Wambold to engage in the meet and confer process to see if they could resolve their dispute with 
15

regard to the Review Sheets. When that failed, the undersigned set a schedule for the filing of a 

motion, which the State followed.

Under the circumstances and given the NJSP's prompt demand for the return of the 

documents, as well as its compliance with the instructions of the undersigned’s first to attempt to 

resolve the issue and then to file its motion for the return of the documents, the Court finds that 

the NJSP took reasonable steps to procure the return of the Review Sheets.

IV. CONCLUSION

Accordingly, this Court finds that the Review Sheets are protected by the deliberative 

process privilege. The Court also finds that the privilege has not been waived, and the Review 

Sheets should therefore be returned to the State, along with an identification of any individuals to 

whom the Review Sheets have been disseminated.

For the foregoing reasons, and for good cause shown,

IT IS on this 20th day of September, 2013,

ORDERED that the NJSP's Motion for Return of Documents [Docket Entry No. 75] is 

GRANTED and Wambold is hereby ordered to return the Review Sheets to counsel for the 

NJSP and to identify any individuals to whom the Review Sheets were disseminated within 10 

days of entry of this Order.

_____ __

LOIS H. GOODMAN

United States Magistrate Judge