Access A Maybe

The New Jersey Appellate Division has held that a court must consider a number of factors in determining public access to unfiled discovery:

In this appeal we consider whether unfiled discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection (NJDEP) against ExxonMobil Corp. (the Exxon litigation) is subject to access pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common-law right of access. We hold that N.J.S.A. 47:1A-9b exempts unfiled discovery from disclosure; however, we reverse the dismissal of plaintiff Drinker, Biddle & Reath LLP's (Drinker) common-law right of access claim, and remand for the court to conduct the appropriate common-law balancing test.

The law firm sought access to unflied portions of the depositions of three Exxon experts. (Mike Frisch)