                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2310-16T2

MILDALIA MADLINGER,

              Plaintiff-Respondent,

v.

NEW JERSEY TRANSIT CORPORATION,

          Defendant-Appellant.
_______________________________________________

              Argued October 2, 2017 – Decided October 30, 2017

              Before Judges Messano, O'Connor, and Vernoia.

              On appeal from an interlocutory order of the
              Superior Court of New Jersey, Law Division,
              Essex County, Docket No. L-4844-14.

              Christopher J. Kelly, Deputy Attorney General,
              argued the cause for appellant (Christopher
              S. Porrino, Attorney General, attorney;
              Melissa H. Raksa, Assistant Attorney General,
              of counsel; Mr. Kelly, on the briefs).

              Claudia A. Reis argued the cause for
              respondent (Lenzo & Reis, LLC, attorneys; Ms.
              Reis, of counsel and on the brief).

              Dwyer & Barrett, LLC and Deutsch Atkins, PC,
              attorneys   for   amicus    curiae  National
              Employment Lawyers Association of New Jersey
              (Andrew Dwyer, of counsel and on the brief;
              Michael Malatino, on the brief).
PER CURIAM

     We granted New Jersey Transit Corporation (NJT) leave to

appeal two orders entered by the Law Division:                   1) clarifying a

prior order and compelling NJT to produce certain documents to

plaintiff, Mildalia Madlinger (the Clarification Order); and 2)

denying NJT's request that the judge enter a protective order or

conduct an in camera review of the documents beforehand.                             The

orders arose in the following context.

     Plaintiff's complaint alleges discrimination based on gender,

ancestry and marital status under the Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -42, and retaliation under the LAD.                        She

claims that while working in the Marketing and Business Development

Department    (Marketing)        of   NJT's      Communications         and   Customer

Service    Division      since   2000,     her    supervisor     and      others     had

subjected    her    to    harassing    conduct      and   disparate        treatment.

Plaintiff    served      NJT   with   interrogatories      and      a    request     for

production of eighty-seven specific categories of documents.

     NJT's response to the document request included more than one

thousand pages but also asserted objections to some requests,

refusing    to     produce     what   it   characterized       as       "confidential

personnel records" and "confidential EEO records."                            Plaintiff




                                           2                                    A-2310-16T2
filed     a    cross-motion1       seeking     to   compel     discovery      as     to

specifically numbered document requests, including, among others,

those falling into four broad categories:              claims made of similar

types of discrimination by other NJT Marketing employees since

2000; documents relating to a co-worker's discrimination complaint

and plaintiff's participation in its investigation; personnel

files of plaintiff's co-employees in Marketing; and plaintiff's

supervisor's personnel files.                 On August 19, 2016, the judge

entered an order compelling NJT to produce all documents to

plaintiff within seven days.2

     NJT moved for clarification of the August 2016 order and a

protective order, asserting that most of the documents plaintiff

sought    in        these   specific     requests    required     disclosure         of

"confidential" files, protected by regulation or Executive Orders.

It argued that production was inappropriate unless and until the

court conducted an in camera review.                NJT's motion sought oral

argument if opposition was filed.

     In       her    opposition,    plaintiff's      counsel     certified         that

although the parties engaged in discussions after entry of the



1
  It appears NJT's motion sought dismissal for violation of Rule
4:23-4, or in the alternative, to extend discovery.
2
  The cross-motion did             not   request    oral     argument   and     there
apparently was none.

                                          3                                   A-2310-16T2
August order to expedite document production, NJT never advised

it would seek a protective order or otherwise attempt to avoid

production of the documents.    She stated that NJT had not yet

produced "any of the discovery it was compelled to produce in the

August . . . order."

     Apparently, without entertaining any oral arguments, the

judge entered the two orders under review. In denying NJT's motion

for a protective order or in camera review regarding EEO and

personnel files, the judge wrote on the order:

          Any and all documents requested in Plaintiff's
          original motion to Compel Discovery must be
          produced within twenty . . . days of the date
          of this Order as Plaintiff has already met
          their [sic] burden of showing that the
          requested material is relevant and not for an
          illegitimate purpose. See Dixon v. Rutgers,
          110 N.J. 432 (1988).

     NJT argues compelling disclosure of the confidential EEO and

personnel files contained in paragraphs 2, 3, 4, 8, 9, 10 and 11

of the Clarification Order without in camera review is contrary

to precedent and public policy, and plaintiff has yet to establish

a particularized need for the documents or their relevancy. 3

Plaintiff argues that in the absence of any asserted privilege,



3
  We deal with only those paragraphs of the order because they are
the only ones cited in NJT's brief.     "An issue not briefed is
deemed waived." W.H. Indus., Inc. v. Fundicao Balancins, Ltda,
397 N.J. Super. 455, 459 (App. Div. 2008).

                                4                          A-2310-16T2
courts are not required to engage in a time-consuming in camera

review    of    documents,    particularly       since    these     documents        are

clearly    relevant     to    her    claims.       She        contends   the     judge

appropriately      exercised    her    discretion        by    compelling      NJT    to

produce the documents without any court review or protective order.

Amicus Curiae National Employment Lawyers Association asserts the

sought-after documents are of the type generally discoverable in

discrimination suits, employers bear the burden of demonstrating

the documents are confidential and must be shielded from discovery,

and an in camera review is not mandatory in every case prior to

production.

     We have considered the arguments of the parties.                     We reverse

and remand for further proceedings consistent with this opinion.

     We "defer to a trial judge's discovery rulings absent an

abuse     of     discretion     or    a       judge's     misunderstanding            or

misapplication of the law."               Capital Health Sys. v. Horizon

Healthcare Servs., 230 N.J. 73, 79-80 (2017) (citing Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).                      Courts

"find[] an abuse of discretion when a decision is 'made without a

rational       explanation,    inexplicably      departed        from    established

policies, or rested on an impermissible basis.'"                    US Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis

v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

                                          5                                    A-2310-16T2
     We begin by acknowledging that our "discovery rules are to

be construed liberally in favor of broad pretrial discovery."

Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997).    Rule 4:10-

2(a) permits discovery of "any matter, not privileged, which is

relevant to the subject matter involved in the pending action."

"The relevance standard does not refer only to matters which would

necessarily be admissible into evidence, but includes information

reasonably calculated to lead to admissible evidence respecting

the cause of action or its defense."     R.L. v. Voytac, 402 N.J.

Super. 392, 408 (App. Div. 2008) (citing Pfenninger v. Hunterdon

Cent. Reg'l High Sch., 167 N.J. 230, 237 (2001)).    The relevancy

standard utilized by the Rule is "congruent with relevancy pursuant

to N.J.R.E. 401, namely, a tendency in reason to prove or disprove

any fact of consequence."   Ibid. (citing Payton, supra, 148 N.J.

at 535).

     Without question, complaints of discrimination made by other

employees against an employer are relevant on a number of fronts.

Connolly v. Burger King Corp., 306 N.J. Super. 344, 347-49 (App.

Div. 1997).   Nevertheless, discovery of such material "must be

implemented by the trial court with some sensitivity to issues of

privacy, confidentiality and privilege," and "the trial court must

determine the appropriate time period from which the material must



                                 6                          A-2310-16T2
be produced," and, if the information is voluminous, "utilize

other techniques to manage the flow of material."                Id. at 349-50.

       In Payton, supra, 148 N.J. at 541, the Court reiterated that

"confidentiality is an important component of any policy designed

to maximize reporting of alleged sexual harassment and to ensure

the accuracy of ensuing investigations into such allegations."

But,   it   refused   to   adopt   "a   blanket      privilege    arising    from

legitimate general concerns for confidentiality." Id. at 542.

Instead, the Court "recognize[d] a conditional privilege that

applies selectively depending on the nature of the materials

involved."     Ibid.       "[R]egarding     confidentiality,       the   balance

weighs in favor of disclosure with appropriate procedures to ensure

justified    confidentiality       in   light   of    plaintiff's    paramount

interest in obtaining relevant materials."             Id. at 544.

       The Court recognized the judge's role was critical to the

proper application of this conditional privilege:

            [T]he trial court may supervise discovery of
            the relevant internal investigatory materials
            and require procedures that protect the
            confidentiality of those involved in the
            investigation if a loss of confidentiality
            would otherwise undermine the efficacy of
            investigations. Such procedures, short of
            suppression, may include redaction, issuance
            of confidentiality or gag orders, and sealing
            of portions of the record.

            [Id. at 542.]


                                        7                                A-2310-16T2
In providing instructions on remand, the Payton court made clear

that the judge should assume the discoverability of any documents

relevant to the plaintiff's claims, and "then should provide [the]

defendant with the opportunity to make particularized assertions

of privilege or confidentiality regarding specific documents."

Id. at 559-60 (emphasis in original).

      We    disagree    with    plaintiff's        assertion     that   the   judge's

orders are entitled to the highly deferential standard of review

routinely given to the trial court's management of discovery

matters.     Here, the judge's order reflects only that she concluded

plaintiff     had     demonstrated      the       relevancy    of   the   documents

requested;      she     failed     to     consider         the      assertions       of

confidentiality made by NJT.            In so doing, the judge applied the

wrong standard.

      Additionally,       the    judge        abdicated       her   authority      and

obligation to control discovery, which would have permitted her

to   give   careful     consideration        to    these   recognized     competing

interests.      In fairness, NJT failed to supply the judge with

"particularized assertions of . . . confidentiality regarding

specific documents."       Ibid.     We were advised at oral argument that

NJT offered to provide redacted and unredacted versions of the

documents for the judge's in camera review, but that assertion is

not borne out by anything in the record.

                                         8                                    A-2310-16T2
     Our analysis applies in equal force to production of the

personnel files, which are the subjects of paragraphs 9, 10 and

11 of the Clarification Order.        Clearly, some of the material in

those records would be relevant to plaintiff's claim of disparate

treatment in salary and advancement.            Material in her supervisor's

personnel file may be relevant to show NJT's response to other

claims of discrimination, if any, made against the supervisor.                  We

were advised at oral argument that NJT already provided certain

information   to   plaintiff   from       the    personnel    files,    such    as

salaries, educational background, etc., but, again, there is no

independent verification of that in the record.

     Paragraph 8 of the Clarification Order compels production of

documents "pertaining to discipline or 'scolding' of employees in

. . . Marketing . . . for their conduct, behavior or attire from

January 1, 2000 to the present."          NJT specifically argues that any

such information would be irrelevant to plaintiff's claims of

discrimination.     However, plaintiff specifically alleges in her

complaint that she was "scolded" for her attire by her supervisor.

Theoretically,     whether   plaintiff       was    singled    out     for   such

treatment could be relevant to her claim, and we reject NJT's

claim that she must further demonstrate particularized need or

relevancy.



                                      9                                  A-2310-16T2
      In sum, we reverse paragraphs 2, 3, 4, 8, 9, 10 and 11 of the

Clarification Order, vacate the order denying NJT's request for a

protective order and in camera review, and remand to the court for

further proceedings that provide NJT with an opportunity to assert

particularized      objections     as    to   specific    documents       before

production, and for the judge to assess those objections in camera.

We   defer   to   the   judge's   discretion    as   to   how   this    is   best

accomplished, as well as any other proceedings that necessarily

manage all discovery so as to consider the competing interests of

discoverability     and   confidentiality      detailed    by   the    Court    in

Payton.

      Reversed in part; vacated in part; remanded. We do not retain

jurisdiction.




                                        10                               A-2310-16T2
