the grand jury proceedings. Id. at 456. See also Douglas
Oil, 441 U.S. at 222 (observing “courts must consider
not only the immediate effects upon a particular grand
jury, but also the possible effects upon the functioning of
future grand juries,” since “[f]ear of future retribution or
social stigma may act as powerful deterrents to those who
would come forward and aid the grand jury in the
performance of its duties”).
In Doe v. Klein, a class of litigants, suing on behalf of
patients at Greystone Park Psychiatric Hospital to enjoin
employees of the hospital from violating plaintiffs’ rights,
moved to compel discovery of a transcript of testimony
received by the grand jury that returned a number of
indictments and a presentment criticizing Greystone
management. 143 N.J. Super. at 136-37. The motion
was denied on the grounds that the reputations of
witnesses who had testified might be jeopardized and
that the effectiveness of the grand jury system would be
impaired if witnesses could not rely on the assurance that
their testimony would remain secret. Id. at 139. The
Appellate Division affirmed, finding that the plaintiffs
had “failed to demonstrate compelling circumstances or
need” sufficient to lift “the veil of secrecy accorded grand
jury proceedings.” Id. at 143.
A litigant in a federal civil action must, as a
prerequisite, apply to the state judge supervising the
State Grand Jury, as designated pursuant to R. 3:6-11(b)
and N.J.S.A. 2B:22-5, for a court order and make a
showing of particularized need to obtain grand jury
materials. Douglas Oil, 441 U.S. at 225; Socialist Workers
Party v. Grubisic, 619 F.2d 641, 644 (7th Cir. 1980)
(holding comity dictates that federal courts defer action
on disclosure requests until the litigant seeking disclosure
shows that the state supervisory court has considered the
request and has ruled on the continued need for secrecy).
State grand jury materials should be accorded at least
the same degree of protection in federal courts that is
provided to federal grand jury materials. Socialist Workers
Party v. Grubisic, 619 F.2d at 643. Parties seeking grand
jury transcripts under Fed.R.Crim.P. 6(e)(3)(C)(I) must
show that the material they seek is necessary to avoid a
possible injustice in another judicial proceeding, that the
need for disclosure outweighs the need for continued
secrecy, and that the request is tailored to cover only
material needed. Id. at 644. The burden clearly rests on
the applicant seeking disclosure to demonstrate that the
need for disclosure outweighs the need for secrecy.
Douglas Oil, 441 U.S. at 223; In re Application of the
United States for an Order Pursuant to the Provisions of Rule
6(e), 505 F. Supp. 25, 26-27 (W.D.Pa. 1980) (an
assertion that the testimony contained in the grand jury
transcripts was relevant and useful in a civil action was not
sufficient to counter the public policy of secrecy of grand
jury proceedings).D. Deliberative Process PrivilegeA “deliberative process privilege” is a doctrine that
allows the government to withhold documents that
reflect advisory opinions, recommendations, and
deliberations comprising part of a process by which
governmental decisions and policies are formulated. In re
Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000).
Although no statute or evidence rule expressly creates
such a privilege, the New Jersey Supreme Court
confirmed that a qualified deliberative process privilege
exists in New Jersey to protect from disclosure
administrative agency documents, which are pre-
decisional, i.e., those generated before the adoption of an
agency’s policy or decision, and deliberative in nature,
containing opinions, recommendations, or advice about
agency policies. Id. at 84-88. A state agency claiming the
privilege bears the initial burden to demonstrate that the
documents it seeks to shield are pre-decisional and
deliberative in nature. Id. at 88. Once that is established,
a presumption is created against disclosure. The burden
then shifts to the party seeking disclosure to show a
compelling need for disclosure that overrides the
government’s interest in non-disclosure. In this
assessment, factors to be considered include the
importance of the material to the movant, its availability
from other sources, and the effect of disclosure on frank
and independent discussion of contemplated govern-
ment policies. Id.Federal common law does not recognize a
deliberative process privilege. Scott v. Edinburg, 101 F.
Supp.2d 1017, 1021 (N.D. Ill. 2000).E. Executive PrivilegeThe executive privilege, also known as the “official
information” or “governmental” privilege, serves to
prevent the disclosure of certain government information
the disclosure of which would be contrary to the public
interest in the effective performance of the executive
branch. Siegfried v. City of Easton, 146 F.R.D. at 101;
Frankenhauser v. Rizzo, 59 F.R.D. at 342. This qualified
privilege belongs to the government, not the individual
office holder, and therefore, must be asserted by the
senior official. Siegfried v. City of Easton, 146 F.R.D. at- The privilege, which has been “sparingly
recognized,” requires the court to balance legitimate