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Mark Twain is said to have quipped, “The reports of my death have been greatly exaggerated.” Setting aside questions of veracity, the quote might be applied with equal force to the privilege-piercing analysis under In re Kozlov, 79 N.J. 232 (1979).

In Kozlov, the New Jersey Supreme Court established a three-part test for piercing privileges: (1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source. Id. at 243-44. Afterward, that piercing test was interpreted as broadly applicable to virtually any scenario in which a privilege had been challenged.

One particularly important application occurred nearly 20 years later in Kinsella v. Kinsella, 150 N.J. 276 (1997), which is a case dear to the hearts of divorce and family law attorneys like me. Therein, the court applied the three-part test under Kozlov to a situation in which a litigant was alleged to have waived the psychologist-patient privilege, N.J.R.E. 505, by filing a complaint for divorce based on “extreme cruelty.” Id. at 308. The court reversed for, among other things, failure to establish that the information could not be secured from a less intrusive source under the third prong of Kozlov.

Subsequently, the Supreme Court decided State v. Mauti, 208 N.J. 519 (2012), which is broadly (and correctly) interpreted to have severely curtailed the applicability of the Kozlov piercing analysis. In Mauti, the court held that the wife of the defendant in a criminal proceeding was entitled to exercise the spousal privilege because doing so did not conflict with a constitutional right and because there had been no waiver of the privilege. Thus, the court in Mauti identified two basic categories of cases to which the Kozlov piercing analysis remains applicable: “(1) where a constitutional right is at stake; or (2) a party has explicitly or implicitly waived the privilege.” Id. at 538-39.

This is when trouble took root. After Mauti, the Rules of Evidence adopted the following in comment 6 to N.J.R.E. 504 (the lawyer-client privilege), which has been quoted in full:

There are numerous cases permitting or requiring disclosure of otherwise privileged attorney-client communications where there exist “overriding public policy concerns” which demand that the privilege “yield to other important societal concerns.” See United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 563 (App. Div. 1984), in which the court considered the issue as one of “waiver” of the privilege. Ibid. However, these cases relied on the privilege-piercing analysis of In re Kozlov, 79 N.J. 232 (1979). See, e.g., Kinsella v. Kinsella, 150 N.J. 276, 299-304 (1997); [other citations omitted]. To that extent, the holdings of these cases [are] called into question by the decision in State v. Mauti, 208 N.J. 519, 537-539 (2012), which severely curtailed Kozlov by discarding its general applicability—with respect to all privileges—and restricted it to instances where constitutional rights are at stake, notably in the criminal law context. See also Hedden v. Kean University, [434 N.J. Super. 1, 17 (App. Div. 2013)], noting that Mauti severely curtailed and discarded the general applicability of Kozlov.

Whether these cases survive stripped of the Kozlov rationale remains to be seen. There is no doubt that privileges can be waived. N.J.R.E. 530. A careful analysis may reveal that the attorney-client privilege, or any other privilege, has been explicitly or implicitly waived, without resort to the “piercing” concept of Kozlov. See In re PSE&G Shareholder Lit., 320 N.J. Super. 112, 114-116 (Ch. Div. 1998). Decisions concerning admissibility of privileged communications will now have to be analyzed under traditional waiver principles, without resort to the Kozlov three-part balancing test.

Biunno, Current N.J. Rules of Evidence, comment 6 on R. 504 at 457 (2017).

Unsurprisingly, the courts incorporated the comment into their decisions. In Hedden v. Kean University, the court explicitly relied on the comment in holding that a motion judge’s ruling was erroneous because, among other reasons, the Kozlov piercing analysis had been “restricted … to instances where constitutional rights are at stake, notably in the criminal law context.” 434 N.J. Super. 1, 17 (App. Div. 2013) (quoting Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 504 (2013)). That statement in Hedden, like the commentary upon which it was based, overlooks the second critical class of cases to which Kozlov piercing remains applicable: implied or explicit waiver. The Supreme Court took pains to preserve that class: “the narrow circumstances, apart from the express exceptions in the rules, under which the ‘need’ prong can be satisfied [include the following]: (1) where a constitutional right is at stake, or (2) a party has explicitly or implicitly waived the privilege. It is only such circumstances that permit judicial intervention. Those principles apply equally to all privileges.” Mauti, 208 N.J. at 538-39.

In a rather interesting feedback loop, the Rules of Evidence now cite to Hedden (which, as noted, originally cited to the Rules of Evidence). Biunno, Current N.J. Rules of Evidence, comment 6 on R. 504 at 457 (2017). The danger, of course, is that the feedback loop will continue to affect case law in the future. For example, in the unpublished decision of Alden Leeds v. QBE Specialty Ins. Co., No. A-2023-14 (App. Div. July 27, 2015), the court quoted extensively from Hedden and, quoting Mauti, noted that “only in the most narrow of circumstances, such as where a privilege is in conflict with a defendant’s rights to a constitutionally guaranteed fair trial, would that need prong of its test be satisfied.” While waiver was not at issue in Alden Leeds, it is important to reinforce that Mauti identified two categories, not one, to which the Kozlov piercing analysis would apply. State v. Mauti, 208 N.J. 519, 538-39 (2012).

Notably, Hedden has a saving grace. The decision appears to acknowledge the existence of circumstances, in addition to conflict with a constitutional right, that would justify abrogation of a privilege. The court held that the privilege should not yield because “there [were] no constitutional rights or overriding public policy or societal concerns to which the attorney-client privilege should yield.” Id. at 17. That statement mimics, but does not cite, language in United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 563 (App. Div. 1984), which referred to “overriding public policy” and “societal concerns” when analyzing waiver.

The comment to the Rule of Evidence, however, acknowledges no such exception. Indeed, the comment goes much farther than omission. It questions whether case law, including Kinsella, can survive in light of Mauti (notwithstanding that Mauti discussed and relied on Kinsella) and theorizes that “[a] careful analysis may reveal that the attorney-client privilege, or any other privilege, has been explicitly or implicitly waived, without resort to the ‘piercing’ concept of Kozlov.” Biunno, Current N.J. Rules of Evidence, comment 6 on R. 504, at 457 (2017).

Mauti does not support that conclusion. As discussed above, Mauti relied extensively on Kinsella, which in turn applied Kozlov piercing to an implied waiver claim. More importantly, Mauti identified two classes of cases that can satisfy the “need” prong of the three-part Kozlov test. “Together, Kozlov and Kinsella establish the narrow circumstances, apart from the express exceptions in the rules, under which the ‘need’ prong can be satisfied: (1) where a constitutional right is at stake, or (2) a party has explicitly or implicitly waived the privilege. It is only such circumstances that permit judicial intervention.” Mauti, 208 N.J. at 538-39. The court’s pronouncement is clear; Kozlov piercing remains applicable to waiver claims.

It is equally clear that the inquiry does not end after the first prong has been satisfied. The Court in Mauti had no need to reference the “need” prong if it meant to discard the remaining prongs under Kozlov. Even when a privilege is pitted against a constitutional right, or when a litigant has impliedly waived the privilege by placing privileged communications at issue, the court must still determine whether: (2) the evidence is relevant and material to the issue before the court; and (3) the information cannot be secured from any less intrusive source. See, e.g., In re Kozlov, 79 N.J. 232, 243-44 (1979). Unless these remaining requirements have been met, the court should not compel disclosure. Any contrary conclusion not only runs afoul of Supreme Court precedent but would lead privileges that serve legitimate public policy needs to yield unnecessarily.•

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