                NOT FOR PUBLICATION WITHOUT THE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,
                                       APPROVED FOR PUBLICATION
v.                                           May 7, 2014

PAULA T. DOW, Individually               APPELLATE DIVISION
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 May 7, 2014

         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).
            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.



                                         2                                 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




                                             3                                      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




                                            4                                    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.



                                     5                                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




                                        6                                     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.



                                        7                             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




                                                  8                                     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.



                                             9                                   A-0779-13T4
       Yet, "notwithstanding the long-established policy of grand-

jury 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




                                              10                                    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



                                               11                                  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:




                                              12                                  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.



                                13                          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,




                                          14                               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.




                                              15                                   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.



                                       16                               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.




                                        17                           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,




                                            18                                  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




                                           19                                   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 time-
            consuming 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



                                       20                           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




                                             21                                      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,




                                            22                                    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
                       7
jury materials.

      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.



                                              23                                    A-0779-13T4
possible re-application "if, after making the requisite good-

faith 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




                                             24                                     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.




                                             25                                      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




                                                26                                      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




                                           27                                  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




                                                28                                          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.




                                          29                                      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




                                             30                                   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.



                                            31                                   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




                                          32                                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.



                                          33                                A-0779-13T4
