On May 3, 2022, the Appellate Division issued a decision in Malanga v. Township of West Orange, in which the Court reversed the trial court in part and remanded the case to the trial court for further proceedings.
In Malanga, our client sought copies of emails between or among Township attorneys, a professional planning firm, attorneys for the West Orange Planning Board, and other Township officials. West Orange produced 124 pages of records, but withheld an additional 32 emails. Defendants argued that the emails were privileged pursuant to the deliberative process privilege and the attorney-client privilege. The trial court agreed, and held that all of the emails that were withheld were privileged.
On appeal, the Appellate Division reversed in part. The Court held that, based on the record developed before the trial court, the record did not support a finding that the requested emails were privileged pursuant to the attorney-client privilege, or that the emails were privileged pursuant to the deliberative process privilege. The Court remanded the matter to the trial court with directions that the Court make new findings regarding the privileges asserted by the Defendants.
This appeal is not the last word in the case. On remand, the parties will have the right to present new or additional factual or legal arguments in support of their positions. Nonetheless, the decision is a thorough recitation and summary of the law regarding how the privileges asserted by the Defendants should be applied by trial courts.