                        NOT FOR PUBLICATION WITHOUT THE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-2912-16T2

PASQUALE FALCETTI, JR.,

        Plaintiff-Respondent,

v.

WATERFRONT COMMISSION OF
NEW YORK HARBOR,

     Defendant-Appellant.
_______________________________

              Argued June 6, 2017 – Decided          July 3, 2017

              Before Judges Ostrer and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Docket No.
              L-4916-14.

              Melissa A. Provost argued the cause for
              appellant (Drinker Biddle & Reath, LLP,
              attorneys; Ms. Provost, on the briefs).

              George T. Daggett          argued    the    cause    for
              respondent.

PER CURIAM

        On leave granted, defendant Waterfront Commission of New York

Harbor appeals a February 6, 2017 order compelling defendant to

produce 194 documents in response to plaintiff Pasquale Falcetti,
Jr.'s discovery demands. We vacate the court's order and remand

for further proceedings in accordance with this opinion.

       Plaintiff's   complaint              alleges       that     defendant     wrongfully

delayed its investigation concerning his eligibility to work as a

longshoreman and thereby deprived him of his right to become

employed in that capacity. During discovery, plaintiff requested

defendant's investigation records. Defendant produced 606 pages

of documents but objected to producing an additional 194 documents

it claimed were privileged. Defendant provided a privilege log

identifying the documents and claiming each was protected from

disclosure under the law enforcement investigatory privilege.

Defendant claimed thirty-one of the documents were also protected

from disclosure under the attorney work product doctrine.

       Plaintiff   filed       a       motion       to    compel    production         of   the

documents. The court granted the motion in an order stating only

that   "[d]efendant[]      .       .    .   shall        provide    to    [p]laintiff       the

documents   requested      pursuant           to    discovery."          The   court    denied

defendant's subsequent motion for reconsideration in an order

finding defendant did not satisfy its "burden to show the material

is privileged" and that plaintiff demonstrated "a compelling need

for [the] material."

       We granted defendant's motion for leave to appeal the court's

orders. In our opinion we discussed the elements of the law

                                                2                                      A-2912-16T2
enforcement investigatory privilege and work product doctrine, and

the balancing tests courts must perform to determine if documents

falling within the privilege or doctrine should otherwise be

produced. Falcetti v. Waterfront Comm'n of N.Y. Harbor, No. A-

1082-15 (App. Div. Sept. 23, 2016) (slip op. at 9-16).            We also

explained that where a court conducts an in camera review of

documents identified in a privilege log, "it must examine each

document individually, and explain as to each document . . .            why

it has so ruled." Id. at 16 (quoting Seacoast Builders Corp. v.

Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003)).

     We found the court's order directing the production of the

documents "[gave] us little to no indication that it considered

the privilege log or the documents and conducted the requisite

balancing," and noted the court's order was unaccompanied by the

findings of fact and conclusions of law required under Rule 1:6-

2(f). Id. at 17. We also concluded the order denying defendant's

motion for reconsideration suffered from the same infirmity; it

"failed to explain how the court reached [its] conclusions." Id.

at 18.

     We further determined the court's finding that plaintiff

demonstrated   a   compelling   need   for   the   documents   "appear[ed]

unsupported by the record." Ibid. The court had not reviewed the

documents in camera, and the three certifications submitted on

                                   3                               A-2912-16T2
defendant's behalf explained the bases for its alleged privileges

under New Jersey law and why disclosure would be harmful. We

therefore found the record did not support the court's conclusion

that defendant failed to make a prima facie showing of privilege,

ibid., and concluded that because plaintiff's counsel's opposing

certification only mentioned four of the privilege log documents,

the record did not support the court's finding that plaintiff

demonstrated a compelling need for the documents. Id. at 18-19 .

     We     remanded   the      matter       for   a   consideration        of   the

certifications and a review of the documents. Id. at 19. We

directed that the court issue "a statement of reasons explaining

why each document or category of documents should or should not

be disclosed." Ibid.

     On remand, the trial court permitted the parties to provide

additional briefs. Plaintiff submitted letter briefs, but did not

submit any additional certifications supporting his claim that

there was a compelling need for the disputed documents. Defendant

submitted     additional   briefs      and    relied     on   the   certifications

previously submitted in support of its assertions of privilege and

harm. The court conducted an in camera review of the documents.

     In   a    February    1,   2017     order,    the    court     again   granted

plaintiff's motion to compel and ordered the production of the

privilege log documents. The court set forth its findings on

                                         4                                  A-2912-16T2
defendant's privilege claims in a chart which grouped the 194

documents into seven categories: "[p]ublic records/news articles,"

"[s]ubpoenas," "[e]mails regarding subpoenas," "[e]mails regarding

investigation," "[l]egal documents," "[n]otes," and "[r]eports of

Commission    investigation."    The    chart    identified    the   exhibit

numbers for the documents included in each category and the court's

ruling on defendant's privilege claims for each category.

     The listed rulings for the "[p]ublic records/news articles"

and "legal documents" categories state only that the documents are

"public records" and therefore not privileged. For the remaining

categories, the chart states either that the documents are "not

privileged" or briefly describes the documents within the category

and states they are "not privileged."

     In addition to the chart, the court provided a conclusory

statement that "[n]one of the documents are protected by the law

enforcement   investigatory     privilege"      and   that   the   thirty-one

documents defendant claimed were protected by the attorney-work

product doctrine were "not protected." The court also offered that

"the vast majority" of the documents relate to "status and/or

scheduling or are public records" and, for that reason, were not

privileged.

     The court then referred to the "few remaining documents" –

without identifying them – that defendant claimed were protected

                                    5                                 A-2912-16T2
by the law enforcement investigatory privilege1 and explained it

conducted the balancing test required in Nero v. Hyland, 76 N.J.

213 (1978), and Piniero v. N.J. Div. of State Police, 404 N.J.

Super. 194 (App. Div. 2008). The court reasoned that those "few

remaining" but unidentified documents did not contain information

revealing law enforcement techniques, confidential sources or

witnesses, and their disclosure would not interfere with future

investigations. The court concluded that the "scale overwhelmingly

weigh[ed]     in     favor    of   disclosure          to    plaintiff,"      for   the

unidentified documents, but based its conclusion only on its

finding that "the documents may be relevant to plaintiff's theory

of delay."

       The   court    further      stated       that   its    findings     concerning

defendant's claim the documents were protected under the attorney

work   product     doctrine     was   "similar"        to    its   findings    on   the

investigatory privilege. The court stated plaintiff demonstrated

a "substantial need" for the production of the thirty-one documents

defendant claimed were protected under the attorney work product



1
  As noted, all of the 194 documents at issue were listed in the
court's chart and addressed in the court's rulings. Defendant
claimed that all of the documents were protected under the law
enforcement investigatory privilege. Based on our review of the
record, we are unable to determine which of the 194 documents
comprise those the court referred to as the "few remaining
documents."

                                            6                                  A-2912-16T2
doctrine. The court also explained that the documents did not

reveal   any   protected   mental   impressions,   conclusions,     legal

theories, or opinions of counsel concerning litigation. The court

entered a February 1, 2017 order granting plaintiff's motion to

compel the production of the privilege log documents.2 This appeal

followed.

     In our initial decision in this matter, we expressly directed

that if on remand the court conducted an in camera inspection of

the documents,3 it was required to issue a statement of reasons

explaining why each document or category of documents should or

should not be disclosed. Falcetti, supra, slip op. at 19; see also

Payton v. N.J. Tpk. Auth., 148 N.J. 524, 550 (1997); Rosenberg v.

State Dep't of Law & Pub. Safety, Div. of Crim. Justice, 396 N.J.

Super. 565, 580-81 (App. Div. 2007); Seacoast, supra, 358 N.J.



2
 The record reflects that on February 28, 2017, defendant provided
plaintiff with 996 pages of materials, which comprised 55 of the
194 documents listed on the court's chart. Some of the documents
were provided with redactions, which were explained in a February
28, 2017 letter from defendant's counsel to plaintiff's counsel.
Defendant supplied the documents without prejudice to its
assertion of privilege for the remaining documents in the privilege
log. The provision of the documents subsequent to the court's
February 1, 2017 order under appeal here does not affect our
decision, and we note that plaintiff is free to challenge the
sufficiency of the production and redactions on remand.
3
  In the initial appeal, we were informed there were 196 documents
at issue. Falcetti, supra, slip op. at 17. On remand, the court
addressed defendant's privilege claims as to only 194 documents.

                                    7                             A-2912-16T2
Super. at 542. The statement of reasons was not only required by

our remand decision, it was otherwise necessary because a failure

to provide findings of fact and conclusions of law "constitutes a

disservice to the litigants, the attorneys and the appellate

court." Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141

N.J. Super. 1, 4 (App. Div. 1976); see Gnall v. Gnall, 222 N.J.

414, 428 (2015).

     Based on our review of the record, we are constrained to

conclude that the court did not make the required findings of fact

and conclusions of law supporting its decision.4 In the first

instance, the court failed to make sufficient findings supporting

its rulings, as reflected on the chart, that the documents in the

"[p]ublic records/news articles," "[e]mails regarding subpoenas,"

"[e]mails regarding investigation," "[n]otes," and "[r]eports of

Commission investigation," are not privileged.5 For the "[n]otes"



4
  We reach this conclusion without the benefit of the documents,
which appellant should have provided to the court in a confidential
appendix. However, it is not for this court, in the first instance,
to review each document, characterize it, ascertain whether it is
subject to privilege, and then determine whether that privilege
should yield to plaintiff's need for discovery. Our role is to
deferentially review, for an abuse of discretion, the trial court's
fulfillment of that task, including setting forth in sufficient
detail the basis for its decision.
5
  It appears the documents in the other categories, "[p]ublic
records/news articles" and "[l]egal documents," were produced by
defendant on February 28, 2017, and thus are no longer at issue.

                                8                           A-2912-16T2
and   "[r]eports     of   Commission    investigation"    categories,    the

rulings on the chart state only that the documents are "[n]ot

privileged." For the two email categories, the chart states only

that the documents are not privileged because they contain status

requests and scheduling issues. Similarly, the ruling on the

documents in the "[n]otes" category states that the documents are

not privileged because they pertain to scheduling and status, and

also because they pertain to "plaintiff's possible relationship

to organized crime."

      The   court's       rulings    were   conclusory,   unsupported      by

sufficient findings of fact, and untethered to any analysis of the

applicable law that we discussed in detail in our opinion remanding

the matter. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("the

trial court must state clearly its factual findings and correlate

them with the relevant legal conclusions"). A determination of the

applicability   of    the    law    enforcement   investigatory   privilege

requires a consideration of many factors and weighing of law

enforcement's need for confidentiality and the party's need for

the disputed records. Nero, 76 N.J. at 223-25; Falcetti, supra,

slip op. at 14-15; Piniero, supra, 404 N.J. Super. at 205-07.

Simple characterizations that a vast number of documents relate

to scheduling or status requests do not represent the detailed



                                       9                            A-2912-16T2
findings required by our directive on remand or by law. See Payton,

supra, 148 N.J. at 550; Seacost, supra, 358 N.J. Super. at 542.

     In addition, although the court determined that none of the

documents were privileged under the law enforcement investigatory

privilege, it nonetheless conducted a balancing test for a "few

remaining" unidentified documents to determine if plaintiff's need

for the documents outweighed defendant's need for confidentiality.

The court made findings that the unidentified documents did not

contain information protected by the investigatory privilege and

concluded    plaintiff's   need      for   the   documents   overwhelmingly

outweighed defendant's need for confidentiality.

     Again, the findings are inadequate. As noted, it is not

possible to discern the documents assessed in the court's balancing

test.6 Moreover, in its attempt to balance the interests of the

parties, the court makes insufficient findings grounded in the

evidentiary record concerning defendant's need for confidentiality

or plaintiff's need for the documents. The court also failed to

address     our   observation   in     the   remand   decision   that    the

certification submitted in support of plaintiff's motion to compel

mentioned only four of the documents in the privilege log and



6
 We note that the documents might include those defendant produced
on February 28, 2017.


                                      10                            A-2912-16T2
therefore "provides no apparent basis" to conclude plaintiff made

a   compelling   need   for    defendant's     entire    investigatory     file.

Falcetti, supra, slip op. at 19. Plaintiff submitted no additional

evidence on remand in support of its request for the documents

and, for the reasons we explained in Falcetti, ibid., the court's

finding    plaintiff    demonstrated      an   overwhelming    need   for    the

documents once again appears unsupported by the record.7

      We offer no opinion as to whether any of the documents are

privileged or come within the protection of the attorney work

product doctrine. That determination must be made by the trial

court in the first instance in accordance with the guidance we

provided in Falcetti. Ibid. The court failed to make the requisite

findings    of   fact    and    conclusions      of     law   supporting     its

determinations and we remand again for the court to do so.

      We vacate the court's February 1, 2017 order and remand for

further proceedings consistent with this opinion. We do not retain

jurisdiction.




7
 The court's conclusion that plaintiff demonstrated a substantial
need for the thirty-one documents defendant also claimed were
protected under the attorney work product doctrine suffers from
the same absence of support in the record. Moreover, the court did
not make any findings of fact based on the evidentiary record and
therefore did not apply the facts to the applicable law in a manner
supporting its conclusion.


                                     11                                A-2912-16T2
