protects witnesses and law enforcement employees,
safeguards the privacy of those under investigation, and
prevents interference with future investigations. Tuite,
181 F.R.D. at 176-77; Raphael v. Aetna Cas. & Sur. Co.,
744 F. Supp. 71, 74 (S.D.N.Y. 1990). It also protects
documents, the disclosure of which would reveal the
evaluative processes in making discretionary prosecutorial
decisions, would deter citizens from making complaints,
and would compromise present and future criminal
investigations and prosecution of wrongdoing. Tuite,
181 F.R.D. at 178-80.
It is well-settled that in camera review of documents
sought to be protected from discovery is an appropriate
means of evaluating a claim of privilege. Borchers v.
Commercial Union Assur. Co., 874 F. Supp. 78, 79
(S.D.N.Y. 1995). In the event that the court enters a
turnover order, the State may move for a protective order
pursuant to R. 3:13-3, requesting that discovery be
provided with significant limitations and restrictions on
dissemination to protect confidentiality.
C. Grand Jury Materials
Grand jury materials are protected from disclosure
by the grand jury secrecy rule, R. 3:6-7. See Matter of
Grand Jury Testimony, 124 N.J. 443, 449-50 (1991); Doe
v. Klein, 143 N.J. Super. at 143. The party seeking
disclosure of grand jury transcripts must establish “a
strong showing of particularized need that outweighs the
public interest in the secrecy of grand jury proceedings.”
State v. Doliner 96 N.J. 236, 241 (1984); see Matter of
Grand Jury Testimony, 124 N.J. at 451; In the Matter of
Allegations of Official Misconduct in the City of Elizabeth,
233 N.J.Super. 426, 433 (App. Div. 1989); State v. Arace
Bros., 230 N.J.Super. 22, 28 (App. Div. 1989). The
policy protected by the grand jury secrecy rule applies
not only to information drawn from the transcripts of the
grand jury proceedings, but also to anything which may
reveal what occurred before the grand jury. United States
v. Smith, 123 F.3d 140, 149 (3d Cir. 1997); In re Grand
Jury Matter, 682 F.2d 61, 63 (3d Cir. 1982); United
States v. Blackwell, 954 F. Supp. 944, 965 (D.N.J. 1997).
This standard was adopted from the virtually identical
test established for discovery of grand jury testimony
pursuant to Fed.R.Cr.P. 6(e) in United States v. Sells Eng’g,
Inc., 463 U.S. 418 (1983), and Douglas Oil v. Petrol Stops,
441 U.S. at 211. The federal test provides that disclosure
of grand jury material under Fed.R.Cr.P. 6(e) is
permitted only where it is sought either “preliminarily
to” or “in connection with” a judicial proceeding, and the
applicant has demonstrated a particularized need for the
requested material. Sells, 463 U.S. at 434. In Sells, the
Court noted that the 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.” 463 U.S. at 445; accord,
Matter of Grand Jury Testimony, 124 N.J. at 451. This
standard “seeks to reconcile the demands of justice with
fundamental grand jury policy.” Matter of Official
Misconduct, 233 N.J. Super. at 433. Ultimate resolution
of the conflict between the sound policy of secrecy of
grand jury proceedings and the concept of liberal
discovery in civil cases depends upon reconciliation of
these competing values, which is best resolved by
requiring applicants to demonstrate “compelling
circumstances or need warranting disclosure of the grand
jury minutes.” Doe v. Klein, 143 N.J. Super. at 141-43.
That is because the interests in preserving the
confidentiality of the State’s investigative files and the
Grand Jury materials “are entitled to a greater degree of
respect” in the context of a civil proceeding. Cashen v.
Spann (I), 66 N.J. at 556 (balancing the interests of a civil
litigant to obtain disclosure of an informant’s identity).
This showing of a particularized need must be made even
when the grand jury whose transcripts are sought has
concluded its proceedings. Douglas Oil, 441 U.S. at 222.In United States v. Proctor & Gamble Co., 356 U.S.
677, 681 n.6 (1958), the Supreme Court listed five
public policy reasons that underlie the need for Grand
Jury secrecy: (1) preventing the escape of those whose
indictment may be contemplated; (2) ensuring free
deliberations, and preventing those subject to
indictment or their supporters from importuning the
grand jurors; (3) preventing subornation of perjury or
witness tampering; (4) encouraging disclosure by
witnesses; and (5) protecting the innocent from exposure
and from the expense of trial where there was no
probability of guilt. In State v. Doliner, 96 N.J. at 247,
the New Jersey Supreme Court recognized those five
policy considerations that justify grand-jury secrecy.Citing Doliner and applying these policies, the Court
in Matter of Grand Jury Testimony, stated, “Because the
grand jury ended its deliberations without returning any
indictments, the first three of the five reasons for secrecy,
which are related to the activities of an ongoing grand-
jury investigation... are no longer relevant.” 124 N.J.
at 455-56. It concluded, however, that because the
grand jury there, unlike the grand jury in Doliner,
returned a no-bill, the protection of those exonerated of
criminal liability from the consequences of disclosure
constitutes a significant basis for preserving the secrecy of