Commercial Litigation Practice Group Co-Chair Leo J. Hurley, Jr. and Alexa C. Salcito, a Partner of the firm, secured a significant appellate victory for the defense in State of New Jersey v. Jason M. O’Donnell, preserving critical portions of a trial court order requiring the State to produce investigative materials withheld by the State for more than six years, and confirming a Defendant’s right to challenge the State’s consensual intercept authorization as illegally obtained.
In a unanimous decision, the New Jersey Superior Court, Appellate Division, affirmed Judge Mitzy Galis-Menendez’s order requiring the State to produce all Attorney General’s Office intra-agency communications related to the April 2018 consensual-intercept authorization that targeted O’Donnell and confirmed his right to challenge the validity of the intercept authorization. The Court also rejected the State’s contention that such production would be unduly burdensome.
The Appellate Division recognized that there is no blanket privilege shielding investigative files, deliberative materials, or intra-agency memoranda from production to a Defendant in a criminal case. Although the Court narrowed portions of the underlying discovery order, the Court’s ruling confirms the defense’s entitlement to records bearing directly on how the investigation began, the conduct of the cooperating witness, and the circumstances surrounding the State’s investigation of a Defendant through the Wiretap Act.
“This decision protects a defendant’s ability to challenge the integrity and legality of a criminal investigation,” said Hurley, counsel for O’Donnell. “The records ordered produced are essential to understanding why the State initiated this operation, and to challenge the legal validity of an intrusive investigative technique that should be used in only the rarest of circumstance – and with a substantive, factual basis to do so. We are pleased that the Appellate Division affirmed these important discovery rights, and to allow Defendant to challenge what we believe has been significant, improper government overreach.”
The defense has maintained that the Attorney General’s Office sought to draw O’Donnell into a criminal investigation without evidence of preexisting wrongdoing. Before the authorized recorded meeting, the State had no open criminal file or active investigation involving O’Donnell. The newly ordered materials will allow the defense to examine the basis for that authorization and the State’s communications concerning the cooperating witness.
