Hedden v. Kean University, 434 N.J. Super. 1 (App. Div. 2013). This interlocutory appeal, which resulted in a 2-1 decision by the Appellate Division, involved issues of attorney-client privilege. In an opinion by Judge Parrillo, joined by Judge Harris, the majority reversed the ruling of the Law Division that had held that the e-mail communication in question was not protected by the privilege even though the communication was sent for purposes of obtaining legal advice. A key issue in the appeal was whether the privilege, which belonged to defendant Kean University, had been waived, and who had the authority to waive the privilege.
Judge Parrillo recognized that appellate courts “normally defer to a trial court’s disposition of discovery matters … unless the court has abused its discretion” or its decision “is based on a misunderstanding of the applicable law.” Because attorney-client privilege and waiver of the privilege are legal issues, review here was de novo.
The majority agreed with the Law Division that the e-mail had sought legal advice, but rejected the ultimate conclusion that the otherwise applicable privilege had been waived. The person who had purportedly waived the privilege on behalf of Kean University did not have authority to do that. Nor did plaintiff’s need for the information, its relevance and materiality, or the fact that it could not be obtained from other sources, overcome the privilege. Those factors had been invoked in In re Kozlov, 79 N.J. 232, 243-44 (1979), on which plaintiff here relied in this regard. The majority responded that Kozlov‘s analysis had thereafter “been severely curtailed and its general applicability discarded,” citing State v. Mauti, 208 N.J. 519, 537-39 (2012). The Kozlov factors are now limited to “instances where constitutional rights are at stake, notably in the criminal law context.” Since that was not so here, plaintiff’s reliance on Kozlov was unavailing.
Judge Guadagno dissented. He disagreed with the premise, adopted by both the Law Division and the Appellate Division majority, that the e-mail was sent for purposes of obtaining legal advice. He also found that the privilege had been validly waived.
The two opinions, especially that of the majority, are loaded with citations on numerous aspects of attorney-client privilege. Topics addressed include the purposes of the privilege, what communications can be privileged, the applicability of the privilege to an entity (as opposed to an individual) and who can waive it, when disclosure of the communication to a third party waives the privilege, where the burden of proof on the issue of the applicability of the privilege lies, and other issues. It is a good resource for any case that presents attorney-client privilege issues.
It would not be surprising if plaintiff sought Supreme Court review in this case. But since this was an interlocutory appeal to the Appellate Division, plaintiff would have to seek leave to appeal to the Supreme Court, despite the dissent in the Appellate Division. Though Rule 2:2-1(a)(2) affords an appeal as of right as to issues on which there is a dissenting opinion in the Appellate Division, that Rule is limited to appeals from final judgments. Since there was no final judgment here, Rule 2:2-2 applies and plaintiff must seek leave.