Subpoenas in New Jersey (part 3)

2 Defendants’ Subpoenas Are Unreasonable and Oppressive Because They Seek to Violate the Privacy Rights of Plaintiff
Plaintiff further objects to the subpoenas on the grounds that they are unreasonable and oppressive because they seek the production of documents which would violate the privacy rights of defendants. Defendants’ subpoenas for employment records must be rejected as unreasonable and oppressive.

Where information of a confidential nature is sought from a non-party, as is the case here with respect to personal records, the party seeking disclosure must make a strong showing of need. See e.g. Litton Industries, Inc., v. Chesapeake and Ohio Co., 129 F.R.D. 528, 530 (E.D. Wisc. 1990). A subpoena should not be used as a general effort by a party to conduct a “fishing expedition” into confidential material. See e.g. Dixon v. Rutgers, 110 N.J. 432 (1988) (protective orders appropriate to protect college peer review materials from excessive disclosure).

New Jersey courts have consistently required that litigants cannot inspect confidential information until they have made a showing of compelling need for that information. Harmon v. Great Atlantic & Pacific Tea Co., Inc., 273 N.J. Super. 552, 558-59 (App. Div. 1994); Ullman v. Hartford Fire Insurance Co., 87 N.J. Super. 409, 415 (App. Div. 1965). In Ullman, a case involving an insurance claim, the Appellate Division established the standard for balancing a litigant’s discovery rights against his adversary’s privacy rights. In reversing an Order compelling the insured to produce tax returns that might show the cause or magnitude of a potential loss, the Court held:
[T]he production of tax returns should not be ordered unless it clearly appears they are relevant to the subject matter of the action or to issues raised thereunder, and further, that there is a compelling need therefore because the information contained therein is not otherwise readily obtainable. [citation omitted.]

The average taxpayer is sensitive about his return and wishes to keep it from publication. He is entitled to that privacy unless there is a strong need to invade it. If disclosure will not serve a substantial purpose, it should not be ordered at all. If ordered, disclosure should be no greater than justice requires. Ullman, 87 N.J. Super. at 415-16.

Similarly, in Harmon, the Appellate Division held that the right to privacy trumped a discovery request seeking to test the bona fides of an emotional distress claim. In reversing an Order requiring the production of financial records, the Court reasoned:

[B]ecause of the scope of the, present order, many personal, unrelated matters would be open to scrutiny without sufficient cause. If plaintiffs are compelled to hand over the records of their banking and credit card transactions, their entire personal lives are open to scrutiny. We find, in these circumstances, that such broad and unfocused inquiry is not necessary and that less intrusive inquiries … would better serve the interests of justice.
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We do not mean to imply that the privacy interests here rises to the level that wholly bars discovery. Rather, we hold that on these facts the privacy interests presented are of sufficient importance to be recognized and protected against such unlimited intrusion. Mere inconvenience or expediency to the defendant will not establish a need sufficient to overcome the privacy interests presented here. Harmon, 273 N.J. Super. at 558 – 59 (emphasis added).
Admittedly, the right of privacy will not bar essential discovery between litigants.