concerns about disclosing information that could
seriously hamper the operation of government against the
interest of the applicant seeking disclosure. Id. at 101-
02.
The privilege is expressed in this state’s evidence rules
at N.J.R.E. 515 (disclosure of “official information” of the
State is precluded if found to be “harmful to the interests
of the public”) and in our statutes, in the identical
N.J.S.A. 2A:84A-27.
F. Work-Product Privilege
In Hickman v. Taylor, 329 U.S. 495, 510 (1947), the
Supreme Court recognized the work-product privilege,
which prohibits “unwarranted inquiries into the files and
the mental impressions of an attorney.” New Jersey’s
work-product privilege, which is stated in stated in R. 4-
10-2(c) and virtually mirrors Fed.R.Civ. P. 26(b)(3),
requires that the party seeking discovery demonstrate a
“substantial need of the materials in the preparation of
the case” and an inability, “without undue hardship to
obtain the substantial equivalent materials by other
means.” However, even after this showing is made,
protection from disclosure is still afforded to mental
impressions or legal theories. United States v. Gangi, 1 F.
Supp.2d 256, 263 and n.4 (S.D.N.Y. 1998) (holding
that a prosecution memorandum requesting approval for
filing of proposed indictment was covered by work-
product privilege, as it set forth “the Government’s legal
theories, mental impressions, and thought processes”
and was prepared in anticipation of litigation).
In United States v. Nobles, 422 U.S. 225, 238-39
(1975), the Supreme Court recognized that the attorney
work-product privilege applies in federal criminal cases.
Pursuant to R. 3:13-3(c), the privilege also applies to
criminal cases in New Jersey.
See related attorney-client privilege which protects
against disclosure of communications between client and
attorney made in the course of the professional
relationship. N.J.R.E. 504; In re Advisory Opinion No.
544 of the New Jersey Supreme Court Advisory Committee on
Professional Ethics, 103 N.J. 399, 405 (1986).
V. TIMELINESS OF SUBPOENAS
Subpoenas compelling witnesses to testify at trial
should be served at least five days before trial. R. 1:9-1.
Subpoenas duces tecum should be served several weeks
before trial so a motion to quash can also be made well
before trial and to provide an opportunity for an
interlocutory appeal. State v. Asherman, 91 N.J. Super.
159, 163 (Cty. Ct. 1966). Whether the timing of service
of process is reasonable depends on the circumstances of
the case. In State v. Zwillman, 112 N.J. Super. 6, 14-15
(App. Div. 1970), certif. denied, 57 N.J. 603 (1971), the
Appellate Division held that where a defendant had
already started to testify at trial, a subpoena duces tecum
served on him on a Sunday night requiring production of
materials the following morning was unreasonable.A subpoena duces tecum seeking records pertaining to
fatal child abuse cases for the purpose of determining
disproportionality in the event the death penalty was
imposed, was held to be premature where the records
were sought prior to the guilt phase of a capital trial. State
v. Bass, 191 N.J. Super. 347, 351 (Law Div. 1983).VI. ENFORCEMENT OF SUBPOENAS
A refusal to obey a subpoena or a subpoena duces
tecum is punishable as contempt of court. N.J.S.A.
2A:81-15c; R. 1:9-5. Enforcement of subpoenas issued
by public officers or agencies is governed by R. 1:9-6,
which allows the issuing officer or agency to apply ex parte
for such enforcement.In Hayes v. Gulli, 175 N.J. Super. at 302-04, the court
held that enforcement of subpoenas issued by the Office
of Administrative Law may be sought pursuant to R. 1:9-
6 without intervention of the agency for whom the
hearing is being conducted.As to the enforceability of investigative interrogato-
ries served by the Attorney General under N.J.S.A.
2C:41-5, see In re Doe, 294 N.J. Super. 108 (Law Div.
1996), aff’d, 302 N.J. Super. 255 (App. Div.), certif.
denied, 151 N.J. 468 (1997), cert. denied, 523 U.S. 1096
(1998). Regarding the enforcement of an investigative
subpoena issued by an administrative agency to an out-
of-state resident and served in another jurisdiction, see
Silverman v. Berkson, 141 N.J. at 412.Substantive as well as jurisdictional challenges to the
validity of a subpoena may be raised defensively in a R.
1:9-6 enforcement and sanction proceeding. In re
Vornado, 159 N.J. Super. 32, 38-39 (App. Div.), certif.
denied, 77 N.J. 489 (1978), held that allegations that a
subpoena duces tecum issued by the Director of the
Division of Civil Rights was overbroad in scope could be
raised as a defense in an enforcement proceeding even if
the issue was decided by the agency in response to a
motion to quash.