                                                       NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 14-4180
                               ___________


                             JAMES BAYLISS

                                     v.

     NEW JERSEY STATE POLICE; TROOPER R. WAMBOLD, JR.,
 individually and in his capacity as a member of the New Jersey State Police;
TROOPER K. JUCKETT, individually and in his capacity as a member of the
      New Jersey State Police; JOHN DOES (1-10), individually and in
       their official capacities with various Law Enforcement Agencies

                             Richard Wambold,
                                         Appellant

                ____________________________________

              On Appeal from the United States District Court
                       for the District of New Jersey
                         (D.C. No. 3-11-cv-00890)
                District Judge: Honorable Mary L. Cooper
               ____________________________________


                Submitted under Third Circuit L.A.R. 34.1(a)
                              June 24, 2015

Before: CHAGARES, KRAUSE, AND VAN ANTWERPEN, Circuit Judges.

                          (Filed: August 13, 2015)
                                         OPINION*

KRAUSE, Circuit Judge.

       Before this Court is Trooper Richard Wambold’s challenge to the District Court’s

decision to (1) affirm the Magistrate Judge’s order that Wambold return certain

documents he obtained during discovery and (2) terminate the case, thus preventing

Wambold from asserting various counterclaims, cross-claims, and a third-party complaint

against the State of New Jersey (the “State”) and the Office of the Attorney General of

New Jersey (“OAG”). For the reasons set forth below, we will affirm.

I.     Background

       The Plaintiff, James Bayliss, filed suit pursuant to 42 U.S.C. § 1983 against

Wambold, another Trooper, and the New Jersey State Police (the “State Police”) alleging

that the two Troopers used excessive force against him during a traffic stop and arrest.

Initially, State counsel represented all three defendants. After the suit was filed, the State

Police’s Office of Professional Standards (“OPS”) conducted an internal investigation

and brought administrative proceedings against the Troopers. The Attorney General thus

terminated the State’s representation and indemnification of Wambold. Wambold then

filed a Motion to Amend his Answer to plead cross-claims and a third-party complaint

against the State Police, State, and OAG for indemnification, contribution, legal


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
malpractice, violation of the duty of loyalty, violation of contract, collateral estoppel, and

civil rights violations under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act, as

well as counterclaims against Bayliss for costs and attorneys’ fees.

       Meanwhile, during discovery, Wambold came into possession of OPS “Review

Sheets,” which contained the opinions of senior State Police personnel regarding the

sufficiency of the investigation into the Troopers’ conduct and their recommendations as

to whether the Troopers should be disciplined. The State Police filed a motion seeking

return of the Review Sheets on March 18, 2013 (the “Clawback Motion”), arguing that

they were disclosed inadvertently and protected by the deliberative process privilege.

       While both the Motion to Amend and Clawback Motion were pending, the State

settled all of Bayliss’s claims, including his claims against Wambold. As a result, on

August 29, 2013, the Magistrate Judge terminated Wambold’s Motion to Amend and

instructed Wambold to indicate whether he intended to refile the motion.1 The

Magistrate Judge then granted the Clawback Motion on September 20, 2013, and denied

Wambold’s Motion for Reconsideration of that order on December 9, 2013.



       1
         Wambold suggested in correspondence with the Magistrate Judge that he would
refile the Motion to Amend unless the State “agree[d] to waive any argument or defense
that it may assert with the State Court or in any other forum as to collateral estoppel, res
judicata, or any other form of claim preclusion including State of Limitations.” Joint
Suppl. App. 199. The State replied that Wambold presented no basis for federal
jurisdiction, and thus, would not “agree to anything other than a standard stipulation of
dismissal without prejudice.” Letter from John M. Bowens, Esq., Oct. 22, 2013, ECF
No. 107. Nonetheless, Wambold never refiled the Motion to Amend.

                                              3
       Wambold appealed the Magistrate Judge’s orders granting the Clawback Motion

and denying the Motion for Reconsideration,2 and the District Court affirmed both on

September 17, 2014. In the same Order, the District Court directed the clerk to close the

case in its entirety, observing that all of the pending claims had been settled and that

Wambold’s proposed counterclaims, cross-claims, and third-party claims were barred by

Younger abstention and the Rooker-Feldman doctrine. The District Court explained,

however, that it did not bar Wambold “from attempting to bring a completely separate

action asserting his claims in federal court.” App. 39. Wambold then sought review in

this Court, naming only the September 17, 2014 Order in his Notice of Appeal.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction over Bayliss’s claims pursuant to 28 U.S.C.

§ 1331, and we have jurisdiction over Wambold’s appeal pursuant to 28 U.S.C. § 1291.

We review the decision to grant the State’s Clawback Motion for abuse of discretion. See

Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000).

III.   Discussion

       Wambold contends the Magistrate Judge and District Court erred in finding that

the OPS Review Sheets were protected by the deliberative process privilege, which

“permits the government to withhold documents containing ‘confidential deliberations of

law or policymaking, reflecting opinions, recommendations or advice.’” Redland Soccer


       2
           He did not seek review of the August 2013 termination of his Motion to Amend.

                                              4
Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 827, 853 (3d Cir. 1995) (quoting In re Grand

Jury, 821 F.2d 946, 959 (3d Cir. 1987)). “It recognizes ‘that were agencies forced to

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

quality of administrative decisions would consequently suffer.’” Id. at 854 (quoting First

Eastern Corp. v. Mainwaring, 21 F.3d 465, 468 (D.C. Cir. 1994)). Accordingly, a

governmental entity asserting the privilege must show that the material sought is pre-

decisional and deliberative. Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178,

183 (3d Cir. 2007); Redland Soccer Club, 55 F.3d at 853-54.

       We agree that the Review Sheets are protected by the deliberative process

privilege. As explained in the Certification of Major David C. Jones, the Commanding

Officer of OPS, after an investigation into alleged misconduct, supervising members of

OPS review the investigating officer’s findings. The supervising members offer their

opinions on the investigation and their recommendations as to whether to impose

discipline in the Review Sheets. Major Jones then considers the complete file, including

the Review Sheets, in formulating a recommendation for the Superintendent of the State

Police, who renders the final decision on any disciplinary actions. As such, the Review

Sheets are clearly pre-decisional and deliberative.

       Wambold argues the Review Sheets cannot be privileged because they constituted

part of the State’s file in representing him in this lawsuit and should have been turned

over to his counsel when the State ended its representation of him. This argument

conflates the State Police’s internal deliberations regarding their disciplinary processes—
                                             5
deliberations solely within OPS—and the representation of Wambold by the OAG, and

there is no indication that the Review Sheets were part of the files maintained by

Wambold’s State counsel. Wambold further asserts that the Review Sheets are not pre-

decisional because the State later reversed its decision to represent him, but that does not

change the privileged character of the Review Sheets. The need to protect officials’

deliberations about one decision does not evaporate because those officials make other

decisions.

        Additionally, the Magistrate Judge and the District Court properly balanced

Wambold’s need for the privileged material against the government’s interest in

confidentiality. Because the deliberative process privilege is not absolute, a court

deciding whether to grant discovery must consider, among other factors, “(i) the

relevance of the evidence sought to be protected; (ii) the availability of other evidence;

(iii) the ‘seriousness’ of the litigation and the issues involved; (iv) the role of the

government in the litigation; [and] (v) the possibility of future timidity by government

employees who will be forced to recognize that their secrets are violable.” Redland

Soccer Club, 55 F.3d at 854 (alteration in original) (quoting First Eastern Corp., 21 F.3d

at 468 n.5) (internal quotation marks omitted). Here, Major Jones indicated that

disclosure of the Review Sheets would have a chilling effect on the candor of the

reviewing officers, which would impact his ability to make a recommendation to the

Superintendent. Further, the Review Sheets, which did not contain any factual material

that was not disclosed to the parties, had little relevance to the only claims before the
                                               6
District Court—Bayliss’s claims for excessive force—and even those had been dismissed

by the time the Magistrate Judge ruled on the Clawback Motion.

       Finally, we agree that the privilege was not waived because the disclosure was

inadvertent, and the State took reasonable steps in preventing and rectifying the

disclosure. See Fed. R. Evid. 502(b). The record is unclear regarding how the Review

Sheets came into Wambold’s possession, but the State demonstrated that the disclosure

was unauthorized, and as such, led to an OPS investigation. Moreover, upon learning of

the disclosure via references in Wambold’s Motion to Amend, the State immediately

requested return of the Review Sheets, and upon Wambold’s refusal, filed the Clawback

Motion. Therefore, we conclude that neither the Magistrate Judge nor the District Court

abused their discretion by granting the Clawback Motion.

       Wambold also argues that “[t]he District Court erred in determining the amended

complaint would be precluded by the Younger abstention doctrine” and asks that we

“vacate the District Court opinion about the application of the Younger doctrine.”

Appellant’s Br. 33. But Wambold never appealed the Magistrate Judge’s termination of

his Motion to Amend, nor did he file a subsequent Motion to Amend. As a result,

Wambold waived his right to challenge the termination, and his proposed counterclaims,

cross-claims, and third-party complaint were never properly before the District Court.

See Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 252 (3d Cir. 1998) (“[A]

party failing to appeal to the district court a magistrate judge’s order in a nondispositive

matter may not raise an objection to it on appeal to a circuit court.”). Because neither the
                                              7
Motion to Amend nor the amended Answer are before us now, we need not address

whether Wambold’s proposed claims can survive should he decide to reassert them in

another action.



III.   Conclusion

       For the reasons stated above, we will affirm the judgment of the District Court.




                                            8
