2009 - 2011 REPORT OF THE
SUPREME COURT COMMITTEE ON
THE RULES OF EVIDENCE
January 19, 2011
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to N.J.R.E. 411, Liability Insurance . . . . . . . . . . 1-4
B. Proposed Amendment to N.J.R.E. 102, Purpose and Construction . . . .5-6
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Adopting a New Jersey Equivalent to F.R.E. 502, Attorney –Client
Privilege and Work Product, Limitations on Waiver . . . . . . . . . . . . . . . . . .7
III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to N.J.R.E. 704, Opinion on Ultimate Issue . . . . . .8
IV. OTHER RECOMMENDATIONS . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
B. Appendix B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13-37
C. Appendix C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38-53
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to N.J.R.E. 411, Liability Insurance (Timing of
Initial Attorney Contact)
During the 2007-2009 term, the Supreme Court Committee on the Rules of
Evidence (“Committee”) organized a subcommittee to consider amending N.J.R.E. 504,
Lawyer-Client Privilege, to include any evidence regarding the timing of a client’s initial
contact with an attorney as within the privilege. Anecdotal experiences relayed by
committee members presented the scenario that in personal injury cases, plaintiffs were
frequently asked by defense counsel when they first consulted with an attorney about
the injury, more specifically whether they consulted an attorney before they consulted a
doctor. The implication clearly being that the plaintiff had not suffered a significant
injury as a result of the accident so as to independently cause him or her to seek
medical attention. In verbal threshold litigation, the inference became arguably more
important, i.e., that plaintiff had not suffered a "permanent injury." Last term, the
subcommittee that studied the issue split evenly, half recommending that N.J.R.E. 504
should be amended to prohibit such inquiries and half opposing such an amendment.
Accordingly, the subcommittee made no recommendation to the full Committee and the
Committee held the matter for consideration in this term.
Having undergone significant reorganization prior to this term, the Committee
again preliminarily discussed the proposal. Further consideration and study of the issue
was delegated to the Privileges Subcommittee, chaired by Judge Mitchel Ostrer. This
subcommittee concluded that the issue could best be addressed through a change to a
rule dealing with relevancy, rather than through a change to N.J.R.E. 504. See
Subcommittee Report (attached as Appendix A). In summary, the subcommittee
thought that evidence as to the timing of attorney contact should be discouraged, but
not absolutely banned. Accordingly, a majority of the subcommittee recommended
adding a new subsection (b) to the current N.J.R.E. 411, Liability Insurance. The
recommended subsection (b) provides that evidence in a personal injury case as to the
timing of attorney contact should only be admitted if its probative value substantially
outweighs its prejudice.
After a spirited debate, the Committee voted 12 to 7 to adopt the
recommendation of the subcommittee. The majority of the Committee was persuaded
that this type evidence should generally be excluded in a personal injury case, because
it is usually irrelevant and prejudicial. It was noted that very little decisional law existed
on the subject; reported and unreported cases dealing with the issue did not expressly
address the relevancy of such evidence.
Most recently, in the unpublished case of Twal v. Hinds, A-4296-06T1 (App. Div.
July 18, 2008), the Appellate Division found no reversible error when the trial judge
limited cross-examination on the fact that the plaintiff consulted with an attorney, before
consulting with a doctor. The Appellate Division agreed with the trial court’s stated
reason for the exclusion; i.e., “’[t]here is absolutely [nothing] wrong about going to a
lawyer and there’s absolutely no reasonable fair inference that this jury should be
making based upon somebody going to a lawyer, period.” (slip op. at 8).
Similarly, in Gilmartin v. Weinreb, 324 N.J. Super. 367, 387 n. 4 (App. Div. 1999),
the Appellate Division, in a medical malpractice case, directed that on retrial the plaintiff
should not be questioned regarding the fact that she consulted an attorney within hours
of her husband’s death. The court remarked: “In the absence of unusual
circumstances, this line of questioning should not be permitted on retrial since the
potential for undue prejudice is substantial.” Ibid.
In contrast, in Thomas v. Toys R. Us, Inc., 282 N.J. Super. 569, 583 (App. Div.
1995), the Appellate Division found no reversible error where the defense attorney had
questioned plaintiff on when she had hired an attorney. The court said: “We find no
error here. It was certainly not a focal point of the case, and had some bearing on
plaintiffs’ motivations and credibility.” Id. at 583.
Those favoring passage of the proposed amendment were concerned about the
lack of uniformity among the trial bench which, to some degree, was evidenced by the
cited cases and by anecdotal discussions among committee members. The majority of
the Committee was also influenced by the experience of its members whose practices
included personal injury claims on behalf of plaintiffs. They reported that trial court
rulings on the admissibility of such evidence were extremely inconsistent. Those
favoring passage believed the proposed rule would bring some consistency to the area
and give much needed guidance to trial judges and lawyers alike.
However, those favoring passage acknowledged that, in certain limited
circumstances, the relevance of such evidence might outweigh any potential for
prejudice. Thus, the Committee adopted the standard fashioned by the
subcommittee—that is, the evidence is inadmissible in a personal injury case, unless its
probative value substantially outweighs its prejudice. This standard tips the balance
against admission, except in the unusual case. Essentially, this standard is the reverse
of the standard found in N.J.R.E. 403, which provides that relevant evidence is
inadmissible if its prejudice substantially outweighs its probative value.
Therefore, for all the reasons stated above, a majority of the Committee
recommends that the Supreme Court adopt the proposed amendment to N.J.R.E. 411.
A minority of the Committee vigorously opposed adoption of N.J.R.E. 411(b) for a
variety of reasons. A number of members opposed the amendment on the grounds that
evidence of when a plaintiff consulted an attorney should never be admitted into
evidence in a personal injury case. These members believe that the right to consult an
attorney is so important that no negative implication should ever be drawn from a
person’s contact with an attorney. The members pointed out that in criminal cases
evidence that a defendant consulted an attorney is inadmissible as infringing on the
right to counsel. See Marshall v. Hendricks, 307 F. 3d 36 (3d Cir. 2002), cert. denied,
538 U.S. 911, 123 S.Ct. 1492, 155 L. Ed. 2d 234 (2003); United States ex rel. Macon v.
Yeager, 476 F. 2d 613 (3d Cir.), cert. denied sub nom Yeager v. Macon, 414 U.S. 855,
94 S.Ct. 154, 38 L. Ed. 2d 104 (1973).
Other members opposed the amendment believing that no special burden should
be placed on the admission of evidence regarding the timing of attorney contact.
Rather, in their opinion, admission of this type of evidence should be governed by the
same standards regarding relevancy and prejudice as any other evidence. They
believe that trial courts should continue to make these rulings on a case-by-case basis.
Lastly, some members of the minority expressed concerns that adoption of the
proposed rule was premised upon anecdotal evidence against a backdrop of little
decisional law. Under the circumstances, adoption of a proposed rule that essentially
reversed the analytical paradigm of N.J.R.E. 403 was unjustified and unwise in their
Rule 411 Liability Insurance and Attorney Contact
(a) Evidence that a person was or was not insured against
liability is not admissible on the issue of that person’s
negligence or other wrongful conduct. Subject to Rule 403,
this rule does not require the exclusion of evidence against
liability when offered for another purpose, such as proof of
agency, control, bias, or prejudice of a witness.
(b) Evidence of the timing of a person’s consultation with an
attorney is not admissible to show the invalidity of a claim for
personal injury in a civil action, unless the court determines
that the probative value of admitting the evidence
substantially outweighs the risk of undue prejudice.
B. Proposed Amendment to N.J.R.E. 102, Purpose and Construction
The Civil Union Law, L. 2006, c. 103, and the Domestic Partnership Act, L. 2003,
c. 246, extend the legal protections of marriage to other types of familial relationships.
N.J.S.A. 37:1-32; N.J.S.A. 26:8A-2. As part of the Civil Union Law, N.J.S.A. 37:1-33
Whenever in any law, rule, regulation, judicial or administrative
proceeding or otherwise, reference is made to "marriage,"
"husband," "wife," "spouse," "family," "immediate family,"
"dependent," "next of kin," "widow," "widower," "widowed" or
another word which in a specific context denotes a marital or
spousal relationship, the same shall include a civil union pursuant
to the provisions of this act.
To comply with this statute, and to take into account the existence of civil unions
and domestic partnerships, the Committee recommends that the Supreme Court amend
N.J.R.E. 102, Purpose and Construction, to add subsection (b). This recommendation
is consistent with R. 1:1-2(b), Construction and Relaxation, which the Supreme Court
adopted on July 16, 2009, so that the Rules of Court will be interpreted to include civil
unions and domestic partnerships.
Rule 102. Purpose and Construction
(a) These rules shall be construed to secure fairness in
administration and elimination of unjustified expense and
delay. The adoption of these rules shall not bar the growth
and development of the law of evidence to the end that the
truth may be ascertained and proceedings justly
(b) As used in these rules, references to “marriage,” “husband,”
“wife,” “spouse,” “family,” “immediate family,” dependent,”
“next of kin,” “widow,” “widower,” “widowed,” or another that
in a specific context denotes a marital or spousal
relationship shall include a civil union, as established by
N.J.S.A. 37:1-28 to -36, and a registered domestic
partnership, as established by N.J.S.A. 26:8A-1 to -13, and
the persons in those relationships.
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Adopting a New Jersey Equivalent to F.R.E. 502, Attorney-Client
Privilege and Work Product; Limitations on Waiver
The Committee considered whether it should adopt a New Jersey rule of
evidence equivalent to F.R.E. 502, Attorney-Client Privilege and Work Product;
Limitations on Waiver. This federal rule was adopted in 2008 to address concerns with
the proliferation of electronic discovery and to resolve a conflict that had developed in
the federal circuits on the consequences of an inadvertent disclosure of documents in
discovery. The Committee forwarded this question to its Privileges Subcommittee,
which drafted a comprehensive report recommending that no New Jersey rule was
necessary (subcommittee report attached as Appendix B).
The Committee adopted the recommendation of its subcommittee for the reasons
stated therein. It also noted that the subcommittee had conducted an informal survey of
judges and practitioners in the State to determine whether the lack of an evidence rule
similar to F.R.E. 502 created practical problems during discovery. No one surveyed
thought that there was such a problem.
III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to N.J.R.E. 704, Opinion on Ultimate Issue
In the 2007-2009 term, the Committee held for consideration the issue of whether
N.J.R.E. 704 should be amended to add subsection (b), as was added to F.R.E. 704 in
1984 (additions underlined):
(a) Except as provided in subsection (b), [t]estimony in the form
of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be
decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did or did
not have the mental state or condition constituting an
element of the crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of fact alone.
The current Committee discussed the proposed rule amendment at its June 30,
2010 meeting, but determined to delay any decision until the Supreme Court decided
State v. Rosales, 202 N.J. 549 (2010), which opinion was pending at the time. The
Supreme Court’s opinion was released less than a month later, but the Committee
never returned to the subject. The Committee will hold this matter for consideration in
the next term.
IV. OTHER RECOMMENDATIONS
The Committee considered whether the various mental health privileges found in
the evidence rules should be reconciled into one overarching mental health privilege.
The Committee noted that currently the extent of the privilege that applies to a
communication between a patient and a mental health provider largely depends upon
the license or professional credentials of the provider. For instance, the rules provide
for different and sometimes inconsistent privileges for communications between a
patient and a psychologist, N.J.R.E. 505, a physician, N.J.R.E. 506, a marriage
counselor, N.J.R.E. 510, a cleric, N.J.R.E. 511, a victim counselor, N.J.R.E. 517 and a
social worker, N.J.R.E. 518.
The Committee assigned study of this subject to its Privileges Subcommittee. As
a preliminary matter, the subcommittee considered whether the Supreme Court had the
authority to amend privileges through the rule-making process. All the privileges found
in Article V of the Evidence Rules were initially adopted as statutes by the Legislature.
The subcommittee concluded that the Court shares power with the Legislature to adopt
or amend evidentiary privileges, but recognized that it is ultimately for the Court to
determine the extent of its own power. See the subcommittee’s report attached as
After a thorough analysis of all New Jersey’s current mental health provider
privileges, the subcommittee’s comprehensive report stated: “In the subcommittee’s
apparent justification for treating a patient’s communications with one mental health
professional differently from communications with a different mental health
professional.” The subcommittee therefore recommended that the Committee
undertake a review of New Jersey’s mental health privileges to determine whether to
recommend a unified health provider privilege. The subcommittee anticipated that the
Committee would “confer with professional societies and patient groups, to gain their
input about existing privileges and any proposed revisions.” In light of the large scope
of such a review, the subcommittee recommended that the Committee seek
authorization from the Court for this project.
The Committee voted unanimously to adopt the subcommittee’s report.
Accordingly, the Committee seeks authorization from the Supreme Court to embark on
a comprehensive study of New Jersey’s mental health provider privileges with the goal
of determining whether New Jersey should adopt a unified privilege. The Committee
anticipates holding hearings on the issue to hear from various stakeholders, including
organizations representing professional mental health providers and patient advocacy
The members of the Supreme Court Committee on the Rules of Evidence
appreciate the opportunity to serve the Supreme Court in this capacity.
Hon. Carmen Messano, J.A.D., Chair
Hon. Jamie D. Happas, P.J.S.C., Vice-Chair
Akinyemi T. Akiwowo, Esq.
Hon. Philip S. Carchman, J.A.D.
John C. Connell, Esq.
William F. Cook, Esq.
Norma R. Evans, Esq.
Dean John J. Farmer, Jr.
Hon. Michele M. Fox, J.S.C.
Benjamin Goldstein, Esq.
Paul H. Heinzel, D.A.G.
Hon. James J. Hely, J.S.C.
Hon. Richard S. Hoffman, J.S.C.
Prosecutor Theodore F.L. Housel
Hon. Sherry Hutchins Henderson, J.S.C.
Hon. Paul Innes, J.S.C.
Michael P. Madden, Esq.
Professor Denis F. McLaughlin
Hon. Jean B. McMaster, J.S.C.
Hon. Mitchel E. Ostrer, J.S.C.
Christine D. Petruzzell, Esq.
Fernando M. Pinguelo, Esq.
Michael J. Plata, Esq.
Joseph J. Rodgers, Esq.
Hon. Garry S. Rothstadt, J.S.C.
Hon. Jack M. Sabatino, J.A.D.
Hon. James P. Savio, J.S.C.
William B. Smith, Esq.
Hon. Edwin H. Stern, P.J.A.D.
Christopher F. Struben, Esq.
Hon. Mark A. Sullivan, Jr., J.S.C.
Hon. Harvey Weissbard, J.A.D. (ret.)
Alan L. Zegas, Esq..
Carol Ann Welsch, Esq., Evidence Committee Staff
To: The Supreme Court Rules of Evidence Committee
From: The Privileges Subcommittee
Re: Recommendation on the admissibility in a personal injury claim on when a
plaintiff contacted an attorney
An issue that comes up in many personal injury trials deals with when a plaintiff
contacted an attorney. Specifically, the defense seeks to have an inference drawn that if an
injured party contacts an attorney before seeing a doctor, there must be something nefarious at
This issue was referred to the Subcommittee on Privileges because of a thought that the
timing of an attorney-client contact could be considered just as privileged as the substance of any
communication which is specifically privileged under Rule of Evidence 504, Lawyer-Client
The Privileges Subcommittee decided not to address this as a privilege matter, but rather
in the context of the relevancy rules, 401 to 411.
A majority of the Subcommittee voted to recommend an addition to Rule 411, which
already provides a specific bar as to whether or not a defendant had liability insurance. The
specific proposal is that Rule 411 be added to as follows: (added language in bold type)
RULE 411. LIABILITY INSURANCE AND ATTORNEY CONTACTS
a. Evidence that a person was or was not insured against
liability is not admissible on the issue of that person’s
negligence or other wrongful conduct. Subject to
Rule 403, this rule does not require the exclusion of
evidence of insurance against liability when offered
for another purpose, such as proof of agency, ownership,
control, bias or prejudice of a witness.
b. Evidence of the timing of a person’s consultation
with an attorney is not admissible to show the
invalidity of a claim for personal injury in a civil
action, unless the court determines that the
probative value of admitting the evidence substantially
outweighs the risk of unfair prejudice.
The majority recommendation would allow the timing of the attorney contact to be
produced in discovery. However, if the defense desired to use such material at trial, it must be
brought to the court’s attention for a finding under the test in the suggested rule.
A minority of the committee believes there is no need for a new rule. The minority view
is that evidence rulings on the issue of the timing of a client contact with an attorney can be
made by trial judges on a case by case basis using the familiar standards pertaining to relevancy
There are three New Jersey cases that discuss this issue. The most definitive and recent
case from the Appellate Division is from July 18, 2008. It is the unpublished case of Twal v.
Hinds, A-4296-06T1. There, the defense attorney sought to use a doctor’s initial patient
questionnaire to show that plaintiff consulted with an attorney before obtaining medical
treatment. “The trial judge concluded, ‘There is absolutely nothing wrong about going to a
lawyer and there is absolutely no reasonable fair inference that this jury should be making based
upon somebody going to a lawyer.’ We agree.” Id. p.8. That statement was by appellate Judges
Lihotz and King.
In the second most recent case, Gilmartin v. Weinreb, 324 N.J. Super. 367, 387, ftnt. 4
(App. Div. 1999), the Appellate Division stated, “During cross examination of Annette by
counsel for Old Bridge and the Weinsteins, it was established that Annette had retained counsel
within a few hours after Brian’s death. In the absence of unusual circumstances, this line of
questioning should not be permitted on retrial since the potential for undue prejudice is
In the case that tips the other way, Thomas v. Toys R Us, Inc., 282 N.J. Super. 569, 583
(App. Div. 1995), the trial court permitted limited questioning on when the plaintiff hired her
attorney. The Appellate Division did not reverse. It said, “We find no error here. It was
certainly not a focal point of the case, and had some bearing on plaintiff’s motivations and
credibility.” Id. at 583.
This issue does not appear to have been addressed head-on in any state. It certainly has
never been established that the timing of an attorney-client contact is specifically part of the
TO: Supreme Court Rules of Evidence Committee
FROM: Privileges Subcommittee
DATE: November 4, 2010
RE: Report on Proposal to Add a Rule to the New Jersey Rules of Evidence to
Correspond to Federal Rule of Evidence 502
OUTLINE OF CONTENTS
II. Federal Rule of Evidence 502
III. Review of Federal Rule of Evidence 502(a)
IV. Review of Federal Rule of Evidence 502(b)
V. Federal Case Law Interpreting Federal Rule of Evidence 502
VI. New Jersey Case Law Regarding Waiver
VII. Action By Other States
VIII. Recommendation of the Privileges Subcommittee
On July 13, 2010, the Privileges Subcommittee was charged to review whether a
provision similar to Fed. R. Evid. 502 should be added to the New Jersey Rules of Evidence.
Fed. R. Evid. 502 relates to the inadvertent disclosure of information protected by the attorney14
client privilege or work product doctrine. The rule was adopted by Congress in September 2008
to respond to the massive proliferation of electronic discovery. The rationale is that a party
should not be deemed to have waived the attorney-client privilege or work product doctrine due
to, for instance, the accidental disclosure of a single privileged email in a massive document
The Privileges Subcommittee met on August 17, 2010 and October 5, 2010 to review this
charge. The Subcommittee also reviewed current case law and related commentary. Based on
this review, and for the reasons below, the Privileges Subcommittee does not recommend the
adoption of a companion provision to Fed. R. Evid. 502 at this time.
II. Federal Rule of Evidence 502
Fed. R. Evid. 502 was adopted by Congress in September 2008. The rule provides as
Rule 502. Attorney-Client Privilege and Work Product;
Limitations on Waiver
The following provisions apply, in the circumstances set out, to
disclosure of a communication or information covered by the
attorney-client privilege or work-product protection.
(a) Disclosure made in a Federal proceeding or to a Federal office
or agency; scope of a waiver.--When the disclosure is made in a
Federal proceeding or to a Federal office or agency and waives the
attorney-client privilege or work-product protection, the waiver
extends to an undisclosed communication or information in a
Federal or State proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or
information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent disclosure.--When made in a Federal proceeding or
to a Federal office or agency, the disclosure does not operate as a
waiver in a Federal or State proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable
steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the
error, including (if applicable) following Federal Rule of Civil
(c) Disclosure made in a State proceeding.--When the disclosure is
made in a State proceeding and is not the subject of a State-court
order concerning waiver, the disclosure does not operate as a
waiver in a Federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been
made in a Federal proceeding; or
(2) is not a waiver under the law of the State where the
(d) Controlling effect of a court order.--A Federal court may order
that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court--in which
event the disclosure is also not a waiver in any other Federal or
(e) Controlling effect of a party agreement.--An agreement on the
effect of disclosure in a Federal proceeding is binding only on the
parties to the agreement, unless it is incorporated into a court
(f) Controlling effect of this rule.--Notwithstanding Rules 101 and
1101, this rule applies to State proceedings and to Federal courtannexed
and Federal court-mandated arbitration proceedings, in
the circumstances set out in the rule. And notwithstanding Rule
501, this rule applies even if State law provides the rule of
(g) Definitions.--In this rule:
(1) “attorney-client privilege” means the protection that
applicable law provides for confidential attorney-client
(2) “work-product protection” means the protection that applicable law
provides for tangible material (or its intangible equivalent) prepared in
anticipation of litigation or for trial.
Fed. R. Evid. 502.
In its comments on the proposed rule, the Senate Committee on the Judiciary noted that
an “efficient and cost-effective discovery process is important to preserving the integrity of our
legal system.” See Report of Senate Committee on the Judiciary, S.Rep. No. 264 (2008). The
Senate Judiciary Committee further noted that the “costs of discovery have increased
dramatically in recent years as the proliferation of email and other forms of electronic recordkeeping
have multiplied the number of documents litigants must review to protect privileged
material.” Id. The Senate Judiciary Committee noted:
Outdated law affecting inadvertent disclosure coupled with the
stark increase in discovery materials has led to dramatic litigation
Currently, the inadvertent production of even a single privileged
document puts the producing party at significant risk. If a
privileged document is disclosed, a court may find that the waiver
applies not only to that specific document and case but to all other
documents and cases concerning the same subject matter.
Furthermore, the privilege can be waived even if the party took
reasonable steps to avoid disclosing it.
The increased use of email and other electronic media in today’s
business environment have exacerbated the problems with the
current doctrine on waiver. Electronic information is even more
voluminous and dispersed than traditional record-keeping methods,
greatly increasing the time needed to review and separate
privileged from non-privileged material. As the time spent
reviewing documents has increased, so too has the amount of
money litigants on all sides must spend to protect against the
potential waiver of privilege.
Report of the Senate Committee on the Judiciary, S.Rep. No. 264
Thus, as indicated in the Advisory Committee Note and the Report of the Senate Committee on
the Judiciary, the purpose of Fed. R. Evid. 502 is to cure the inability of the current federal law
of waiver to respond to the massive proliferation of discovery, particularly in the area of
III. Review of Federal Rule of Evidence 502(a)
Part (a) of Fed. R. Evid. 502 addresses intentional disclosures. Under Part (a), if an
intentional disclosure is made, the waiver will extend to an undisclosed communication in a
federal or state proceeding if the disclosed and undisclosed communications “concern the same
subject matter” and “ought in fairness be considered together.” Fed. R. Evid. 502(a).1
The Appellate Division addressed this situation in In re Grand Jury Subpoena Issued to
Galasso, 389 N.J. Super. 281 (App. Div. 2006). There, an attorney represented the principals of
a social club where illegal gambling activity had allegedly been conducted. Id. at 289. A Morris
County grand jury subpoenaed him to testify and produce documents in connection with an
investigation of the club. Id. The attorney moved to quash the subpoena on the basis that his
testimony would disclose attorney-client communications. The Law Division denied his motion
based on a certification submitted ex parte by the chief assistant prosecutor.
The Appellate Division granted the attorney’s interlocutory appeal and affirmed the Law
Division. The Appellate Division observed that a grand jury is permitted wide latitude in
conducting investigations. Galasso, 389 N.J. Super. at 295. The Appellate Division further
noted that where an attorney is required to testify before a grand jury, the attorney should appear
and assert the privilege in response to specific questions. Id. at 297 (citing In re Grand Jury
Subpoenas Duces Tecum Served by the Sussex County Grand Jury, 241 N.J. Super. 18, 34 (App.
Div. 1989)). The Appellate Division ruled that a record needed to be established as to the
1 The same rule applies to disclosed and undisclosed information (as opposed to
questions asked before the grand jury and whether the attorney objected to such questions on the
basis of the attorney-client privilege. The Appellate Division observed that waiver of the
privilege occurs “if the holder of the privilege discloses ‘a confidential communication for a
purpose outside the scope of the privilege,’” and, “once the holder discloses privileged
communications, he has waived the privilege with respect to related privileged information
pertaining to the same subject matter.” Galasso, 389 N.J. Super. at 298 (citing Sicpa N. Am.,
Inc. v. Donaldson Enters., 179 N.J. Super. 56, 62 (Law Div. 1981); Weingarten v. Weingarten,
234 N.J. Super. 318, 326 (App. Div. 1989)). Once a record was developed, the trial judge was
directed to determine the existence and impact of any waiver based on the specific questions
asked. Galasso, 389 N.J. Super. at 298-99.
Based on Galasso and the cases cited therein, it is clear that the rule contained in Fed. R.
Evid. 502(a) is already part of New Jersey case law. Fed. R. Evid. 502(a) states that an
intentional waiver of the attorney-client privilege only acts to waive the privilege as to an
undisclosed communication or piece of information if such undisclosed communication or
information concerns the same subject matter and “ought in fairness” be considered together
with the disclosed communication or information. Similarly, under Galasso, an intentional
disclosure operates as a waiver of an undisclosed communication or information involving the
same subject matter. Galasso, 389 N.J. Super. at 298; Weingarten, 234 N.J. Super. at 326.
Therefore, the Privileges Subcommittee does not believe that the adoption of a rule similar to
Fed. R. Evid. 502(a) would add anything to the law as it already exists in New Jersey.
IV. Review of Federal Rule of Evidence 502(b)
Part (b) of Fed. R. Evid. 502 addresses the question of what happens when an inadvertent
disclosure occurs. As is apparent from the Advisory Committee Note to the new Rule, part (b) is
the main response to growing concerns relating to the proliferation of electronic discovery.
Under part (b), an inadvertent disclosure of privileged information will not operate as a waiver
if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable
steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error,
including, if applicable, Fed. R. Civ. P. 26(b)(5)(B).2
Courts in New Jersey and elsewhere have identified three approaches to the issue of an
inadvertent disclosure of privileged information. See Trilogy Communications, Inc. v. Excom
Realty, Inc., 279 N.J. Super. 442, 445-446 (Law Div. 1994); Kinsella v. NYT Television, 370
N.J. Super. 311, 317-318 (App. Div. 2004); Advisory Committee Note to Fed. R. Evid. 502(b)
(citing Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005)). Under the first approach,
any disclosure of privileged information, even if inadvertent, operates as a waiver of the
privilege. Under the second approach, an inadvertent disclosure of privileged information can
constitute a waiver if the attorney did not take reasonable precautions to prevent the disclosure.
Finally, under the third approach, an inadvertent disclosure, even if negligent, does not constitute
2 Fed. R. Civ. P. 26(b)(5)(B) provides, “If information produced in discovery is subject to a claim of privilege or of
protection as trial preparation material, the party making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy
the specified information and any copies it has; must not use or disclose the information until the claim is resolved;
must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may
promptly present the information to the court under seal for a determination of the claim. The producing party must
preserve the information until the claim is resolved.” Similarly, R. 4:10-2(e)(2) provides, “If information is
produced in discovery that is subject to a claim of privilege or of protection as trial preparation material, the party
making the claim may notify any party that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may
not use or disclose the information until the claim is resolved. A receiving party may promptly present the
information to the court under seal for a determination of the claim. If the receiving party disclosed the information
before being notified, it must take reasonable efforts to retrieve it. The producing party must preserve the
information until the claim is resolved.”
a waiver. Rather, under the third approach, a waiver of privileged information occurs only if the
disclosure was intentional.
As will be discussed more fully below, Fed. R. Evid. 502(b) adopts the second approach
above. Under part (b), an inadvertent disclosure of privileged information can constitute a
waiver if the attorney did not take reasonable precautions to prevent the disclosure. Meanwhile,
New Jersey case law remains limited on the issue of inadvertent disclosure. The case law that
does exist appears to favor the third approach, i.e. that an inadvertent disclosure of privileged
information will not constitute a waiver of the privilege, even if it the result of negligence, as an
intentional disclosure is required for a waiver to exist. As noted, however, New Jersey courts
have not formally adopted the third approach. This was made clear in the Supreme Court’s
recent decision in Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010). There, the
Supreme Court mentioned the second and third approaches, but declined to adopt either one.
This memorandum will now examine the case law on inadvertent disclosures in more
V. Federal Case Law Interpreting Federal Rule of Evidence 502
Only a handful of reported federal cases have addressed Fed. R. Evid. 502. One of the
first decisions is an opinion by Magistrate Judge Schneider in Peterson v. Bernardi, 262 F.R.D.
424 (D.N.J. 2009). There, a former prisoner sued the Burlington County Prosecutor after DNA
evidence exonerated him of murder and rape. Id. at 426-27. During discovery, the prisoner
moved to compel the return of documents that he believed were protected by the attorney-client
privilege, work product doctrine, and cleric penitent privilege. Id. at 427. The prisoner argued
that the documents should be returned because he took reasonable steps to preclude their
Magistrate Judge Schneider held that plaintiff waived the attorney-client privilege and
work product doctrine as to most of the documents that plaintiff sought to recover.3 The Court
applied the following analysis.
When deciding whether inadvertently produced documents should
be returned a two-step analysis must be done. First, it must be
determined if the documents in question are privileged. It is
axiomatic that FRE 502 does not apply unless privileged or
otherwise protected documents are produced. [Heriot v. Byrne,
257 F.R.D. 645, 655 (N.D. Ill. 2009).] Second, if privileged
documents were inadvertently produced then the three elements of
FRE 502(b) must be satisfied (1) the disclosure must be
inadvertent; (2) the holder of the privilege or protection took
reasonable steps to prevent the disclosure, and; (3) the holder
promptly took reasonable steps to rectify the error, including (if
applicable) following Fed.R.Civ.P. 26(b)(5)(B). The disclosing
party has the burden to prove that the elements of FRE 502(b) have
been met. Heriot, supra, at 658-59; Relion, Inc. v. Hydra Fuel Cell
Corporation, C.A., No. CV06-607-HU, 2008 WL 5122828, at *3
(D.Or. Dec.4, 2008).
Peterson, 262 F.R.D. at 427.
Magistrate Judge Schneider noted that Fed. R. Evid. 502 “does not change applicable case law
which places the burden of proving that a privilege exists on the party asserting the privilege.”
Peterson, 262 F.R.D. at 427 (quoting Louisiana Mun. Police Employees Retirement System v.
Sealed Air Corp. (“Sealed Air”), 253 F.R.D. 300, 305-06 (D.N.J. 2008)).
In his analysis, Magistrate Judge Schneider determined that the documents at issue were
not privileged. Peterson, 262 F.R.D. at 427-430. The mere assertion that a communication was
between the attorney and client was not enough to establish that the privilege applied. Id. at 428
(noting that simply attaching a privilege log listing blanket objections was not sufficient to
establish that the attorney client privilege applied (citing NE Technologies, Inc. v. Evolving
3 Magistrate Judge Schneider ordered that one set of documents should be returned, namely a
series of documents prepared by students at the Innocence Project who had assisted in plaintiff’s
Systems, Inc., C.A. No. 06-6061 (MLC), 2008 WL 4277668, at *5 (D.N.J. 2008)). Moreover,
plaintiff did not produce evidence that the documents claimed to be work product were actually
prepared in anticipation of litigation. Peterson, 262 F.R.D. at 427-430 (citing In re Gabapentin
Patent Litigation, 214 F.R.D. 178, 183 (D.N.J.2003); Sealed Air, 253 F.R.D. at 306-07).
Not only did Magistrate Judge Schneider find that the documents were not protected by
the attorney-client privilege or work product doctrine, but he further held that if the documents
were privileged, plaintiff did not take reasonable steps to preserve them, thus resulting in a
waiver under Fed. R. Evid. 502. In this regard, the Court noted as follows:
Even if plaintiff established that the documents in question were
privileged, plaintiff's motion would still be denied except as to one
category of documents. Plaintiff, not defendants, has the burden of
proving that his documents were inadvertently produced. Heriot,
supra, at 658-59; [Ciba-Geigy v. Sandoz, Ltd., 916 F.Supp. 404,
412 (D.N.J. 1995)]. FRE 502(b) opts for a middle ground approach
to determine if an inadvertent disclosure operates as a waiver. See
Explanatory Note to FRE 502(b) (revised November 28, 2007).
This is essentially the same approach used in Ciba-Geigy, which
has been applied in New Jersey. See Maldonado v. New Jersey ex.
rel. Administrative Office of the Courts-Probation Division, 225
F.R.D. 120, 128-29 (D.N.J.2004); Jame Fine Chemicals, Inc. v. Hi-
Tech Pharmacal Co., Inc., C.A. No. 00-3545 (AET), 2006 WL
2403941, at *2 (D.N.J. Aug.18, 2006). See also [Preferred Care
Partners Holding Corp. v. Humana, Inc., No. 08-20424-CIV, 2009
WL 982449, at *4 (S.D. Fla. April 9, 2009)] (the intermediate
approach and the Rule 502(b) analysis are substantially similar).
Under the Ciba-Geigy approach at least five factors are analyzed to
determine if a waiver occurred (1) the reasonableness of the
precautions taken to prevent inadvertent disclosure in view of the
document production; (2) the number of inadvertent disclosures;
(3) the extent of the disclosures; (4) any delay and measures taken
to rectify the disclosure, and; (5) whether the overriding interests
of justice would or would not be served by relieving the party of its
error. Ciba-Geigy, 916 F.Supp. at 411.
Peterson, 262 F.R.D. at 428-29 (footnote omitted).
Thus, Magistrate Judge Schneider held that federal law in New Jersey already applies the test
adopted in Fed. R. Evid. 502 regarding waiver.
Applying the Ciba-Geigy test, the Court found that plaintiff did not establish that the
disclosures were inadvertent. As to the first prong, plaintiff only stated that he engaged in a
privilege review for each production. However, plaintiff did not state when the review occurred,
how much time was taken in each review, or other basic details of the review process. Peterson,
262 F.R.D. at 428-29. The Court further rejected plaintiff’s argument that privileged documents
had been identified during the privilege review but, mistakenly, not separated. Id. The Court
found that other factors weighed in favor of waiver, including the fact that the documents, which
were clearly between attorney and client, warranted special scrutiny, as well as the fact that 135
accidently disclosed documents was not an insignificant number of documents. Id. at 429.
Although plaintiff took steps relatively quickly to notify opposing counsel of the error, this fact
did not override plaintiff’s lack of diligence in preventing the disclosures. On the whole,
therefore, the Court found that plaintiff waived the attorney-client privilege and work product
doctrine with respect to the disclosed documents, except for a narrow subset of documents that
had been prepared by students working for the Innocence Project. Id. at 429-430.
In Callan v. Christian Audigier, Inc., 263 F.R.D. 564 (C.D. Cal. 2009), defendants
requested that plaintiff return 34 allegedly privileged documents. Plaintiff responded by stating
that there were numerous documents produced by defendants in the litigation and that it was
impossible to locate the documents that defendants referenced. Defendants moved for the return
of the documents under a “claw-back” provision that had been included by the Magistrate Judge
in a prior protective order in the case. The “claw-back” provision stated as follows:
The inadvertent production of any discovery material by any party
shall be without prejudice to any subsequent claim by the
producing party that such discovery material is privileged or
attorney-work product and shall not be deemed a waiver of any
such privilege or protection. If, after discovery materials are
disclosed, a producing party notifies all receiving parties of a claim
that materials are protected by the attorney-client privilege or
work-product doctrine or any other applicable privilege or
protection, the receiving party shall not make any use of the
contested material and shall return to the producing party all copies
thereof presently in its possession. Nothing in this provision shall
be construed to prevent or restrict any party's right to object to the
propriety of any other's assertion that materials are properly
protected by the attorney-client privilege or work-product doctrine,
or any other applicable privilege, or protection.
Callan, 263 F.R.D. at 565.
In ruling on the motion, the Magistrate Judge held that defendants did not meet their
burden of showing that that the documents that were inadvertently disclosed were actually
privileged. Id. at 567. The documents were not identified on a privilege log, nor did defendants’
counsel identify which privileges applied. In her analysis, the Magistrate Judge noted that Fed.
R. Evid. 502 addresses the issue of inadvertent disclosure of information protected by the
attorney-client privilege or the work product doctrine. The Court further observed that the Fed.
R. Civ. P. 26(b)(5)(b) addresses the manner in which parties should handle information that has
been inadvertently produced. Fed. R. Civ. P. 26(b)(5)(b) provides:
If information produced in discovery is subject to a claim of
privilege or of protection as trial-preparation material, the party
making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a
party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the
information until the claim is resolved; must take reasonable steps
to retrieve the information if the party disclosed it before being
notified; and may promptly present the information to the court
under seal for a determination of the claim. The producing party
must preserve the information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5)(b).
Since defendants did not meet their burden of showing that the documents at issue were
privileged, the Court did not reach the question of whether a privilege had been waived.
In Kandel v. Brother Int'l Corp., 683 F. Supp. 2d 1076 (C.D. Cal. 2010), a class action
involving toner cartridges, plaintiffs moved for an order requiring the return of 28 documents
that were allegedly protected by the attorney-client privilege or work product doctrine. The
Court held that the documents were protected by the attorney client privilege and work product
doctrine, and further, that the documents were inadvertently disclosed, therefore requiring their
return to plaintiffs. Id. at 1081-1086. The Court noted that defendants had produced 10,400
documents in discovery consisting of 67,678 pages of documents. Id. at 1086. Many of the
documents were in Japanese. Id. Defendants retained a third-party contractor to assist with the
document review. Id. The contractor failed to properly apply certain search protocols, thus
resulting in the disclosure of documents protected by the attorney-client privilege and work
product doctrine. Once aware of the disclosure, defendants sent a letter to plaintiffs regarding
the disclosure and identified the documents at issue by Bates-stamp number. Id. at 1085. The
Court found that these facts were sufficient to establish that the disclosure was inadvertent under
Fed. R. Evid. 502, Fed. R. Civ. P. 26(b)(5)(b), and a prior protective order in the case.
In Edelen v. Campbell Soup Co., 265 F.R.D. 676 (N.D. Ga. 2010), a Title VII
employment discrimination case, defendants sought the return of four pages of documents
consisting of communications between in-house counsel and the human resources department.
Id. at 682. The Magistrate Judge held that the documents were protected by the attorney-client
privilege. Id. The Magistrate Judge further held that the documents were inadvertently disclosed
because three levels of attorneys had reviewed 2000 documents, and only 4 privileged
documents were disclosed. Id. at 682, 698. On appeal of the Magistrate Judge’s ruling, the
District Court affirmed the Magistrate Judge’s conclusions.
In Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors,
Inc., 266 F.R.D. 1 (D.D.C. 2010), an ERISA action, defendants argued that plaintiffs, two union
pension plans, could not assert the work product doctrine based on the fact that two unpaid
consultants attended meetings of the trustees of the plans and received documents from the
meetings. Id. at 3-7. The Court determined that the work product doctrine was not lost based on
the presence of the outside consultants. Id. at 6-9. Furthermore, the Court rejected defendants’
argument that the disclosure of certain subject matter in non-privileged documents required the
disclosure of the same subject matter in privileged documents. Id. at 6-9. The Court observed
that this is not the proper analysis under Fed. R. Evid. 502. Instead, under Fed. R. Evid. 502, it is
the disclosure of subject matter in a privileged document that may require the disclosure of
similar subject matter in other privileged documents, but only if the documents involve the same
subject matter and “ought in fairness be considered together.” Trustees, 266 F.R.D. at 10-11
(quoting Fed. R. Evid. 502(a)(2), (3)).
To summarize, the federal cases interpreting Fed. R. Evid. 502 make clear that a two-step
process is involved to determine whether the attorney-client privilege or work product doctrine
has been waived. First, a court must determine whether, in fact, the attorney-client privilege or
work product doctrine applies. Second, the court must determine whether the disclosure was
actually inadvertent, and whether the producing party acted reasonably and diligently in
attempting to recover the document.
VI. New Jersey Case Law Regarding Waiver
There is not a significant amount of case law in New Jersey addressing when a waiver of
the attorney-client privilege or work product doctrine occurs when privileged information is
inadvertently disclosed. The case law that does exist, however, appears to favor the third
approach in which an inadvertent disclosure through mere negligence does not waive the
In Trilogy Communications, Inc. v. Excom Realty, Inc., 279 N.J. Super. 442, 445 (Law
Div. 1994), the Law Division considered whether a document produced in discovery was
inadvertently disclosed and thus inadmissible at trial. The document was an unsigned draft letter
from counsel for Excom to counsel for Trilogy. Id.at 443. The letter was alleged to be
confidential and was prepared in draft for submission to Excom’s General Counsel before being
sent to counsel for Trilogy. Id. The document was one of over 5,500 pages of documents
produced in discovery. At trial, Excom objected to the admission of the document at trial
because it was a privilege draft letter from retained counsel to the general counsel for the client.
It was sent for information and approval before being sent to Trilogy. Moreover, there was no
evidence in the record that the document was ever received by Excom’s general counsel, ever
transmitted to Trilogy’s general counsel, or authorized by Excom for disclosure. Id.
The Law Division held that the document was confidential under N.J.S.A. 2A:84A-20
(attorney-client privilege) and N.J.R.E. 504. The Law Division reported that there were no New
Jersey decisions addressing “whether or not the inadvertent production of a confidential attorneyclient
communication constitutes a waiver of the privilege.” Trilogy, 279 N.J. Super. at 443-44.
In the absence of case law, the Law Division considered State v. J.G., 261 N.J. Super. 409 (App.
Div.), certif. denied 133 N.J. 436 (1993), in which the Appellate Division held that the
inadvertent disclosure of a confidential Family Service file did not constitute a waiver of the
victim-counselor privilege. Trilogy, 279 N.J. Super. at 444. Furthermore, the Appellate
Division in J.G. questioned in dicta “whether our courts would adopt the strict approach and
conclude that the privilege is automatically waived by reason of an inadvertent disclosure.”
Trilogy, 279 N.J. Super. at 445 (quoting J.G., 261 N.J. Super. at 420-21).
In addition to J.G., the Law Division in Trilogy noted “three distinct lines of authority on
this issue.” As explained by the Law Division, the first approach holds that the privilege is
destroyed by any involuntary disclosure including a mistaken one. Trilogy, 279 N.J. Super. at
444 (citing, inter alia, F.D.I.C. v. Marine Midland Realty Credit Corp., 138 F.R.D. 479 (E.D.
Va. 1991); 8 Wigmore on Evidence § 2292 (McNaughton rev. 1961)). The Law Division
rejected this approach “as it fails to take into account that the privilege is that of the client and
must therefore be waived by the client.” Trilogy, 279 N.J. Super. at 445. The Law Division
further noted that “[w]aiver does not occur unless a known right is intentionally and deliberately
relinquished.” id. at 445 (citing West Jersey Title and Guar. Co. v. Industrial Trust Co., 27 N.J.
144, 152 (1958)).
Under the second approach identified in Trilogy, “documents may lose their privileged
status if the disclosing party did not take reasonable steps to insure and maintain their
confidentiality.” Trilogy, 279 N.J. Super. at 445 (citing In re Grand Jury Proceedings, 727 F.2d
1352, 1356 (4th Cir. 1984)). The second approach “is grounded in the notion that even though
inadvertent disclosures are, by definition, unintentional acts, they may occur under circumstances
of such extreme or gross negligence as to warrant the disclosure to be intentional, and thus a
waiver.” Trilogy, 279 N.J. Super. at 445.
The Law Division next identified a third approach in which “mere inadvertent production
of a privileged document by the attorney does not waive the client’s privilege.” Trilogy, 279
N.J. Super. at 445-446. The Law Division considered this approach to be the “better reasoned
rule” because New Jersey “has long recognized the important public policy reasons favoring the
confidentiality of attorney-client communications.” Trilogy, 279 N.J. Super. at 446 (citing In re
Advisory Opinion No. 544 of New Jersey Supreme Court Advisory Comm. on Prof'l Ethics, 103
N.J. 399 (1986)). The Law Division stated that “[t]o hold that the inadvertent production of a
privileged document is a waiver of the lawyer-client privilege would render nugatory this state’s
strong public policy favoring the confidentiality of lawyer-client communications embodied in
statute, rules of evidence, rules of professional ethics, and case law.” Trilogy, 279 N.J. Super. at
In Nat'l Util. Serv., Inc. v. Sunshine Biscuits, Inc., 301 N.J. Super. 610 (App. Div. 1997),
defendant disclosed a three-page pre-litigation memorandum prepared by in-house counsel for
defendant to defendant's Controller. Id. at 613. The memorandum discussed “the basis for
plaintiff's claims against defendant under the contract” and made “‘recommendations’ for
corporate action, investigation of the work actually done by plaintiff and consideration of a
‘buyout’ of the contract.” Id. at 613. When defendant realized that the documents were
disclosed in its discovery production, defendant requested the immediate return of the
memorandum. Id. Plaintiff moved for an order permitting it to retain the memorandum and use
it in litigation. The Law Division held that the memorandum was excluded from the attorney
client privilege on the basis of the crime-fraud exception and that plaintiff could use the
memorandum in litigation. Id. at 613.
On leave granted, the Appellate Division reversed the Law Division and held that the
memorandum was neither discoverable nor subject to use by plaintiff. Id. at 613. Judge Stern,
writing for the Appellate Division, held that that “because the Barbieri memorandum was written
as part of the duties of in-house counsel who was retained to provide professional legal advice to
the corporation, and the memorandum was prepared in furtherance thereof, it is subject to the
attorney-client privilege unless an exception applies.” Id. at 613 (citing, inter alia, United Jersey
Bank v. Wolosoff, 196 N.J. Super. 553, 560-63 (App. Div. 1984)). In addition, the Appellate
Division determined that the crime-fraud exception did not apply. Id. at 618-19. In a footnote,
the Appellate Division noted that the “parties agree that the inadvertent disclosure during
discovery does not constitute a waiver by the client of its privilege.” Sunshine Biscuits, 301 N.J.
Super. at 614, n. 2 (citing State v. Sugar, 84 N.J. 1, 13 (1980); Trilogy, 279 N.J. Super. at 447-
48; N.J.S.A. 2A:84A-30; N.J.R.E. 531).
In Schillaci v. First Fid. Bank, 311 N.J. Super. 396, 407-408 (App. Div. 1998), plaintiff
appealed the Law Division’s refusal to admit an attorney-client memorandum into evidence at
trial where the memorandum was produced during discovery. Plaintiff argued that since the
memorandum was produced during discovery, it should have been admissible at trial. Id. at 408.
The Appellate Division rejected plaintiff’s argument, holding that “neither the record submitted
to us nor plaintiff's brief discloses sufficient facts to show whether or not the release of the
memorandum during discovery was knowing and intentional rather than inadvertent.” Id. at 408
(citing N.J.R.E. 530; J.G., 261 N.J. Super. at 419-21; Trilogy, 279 N.J. Super. at 445. The
Appellate Division remanded for further proceedings to determine whether the disclosure was
In State v. Blacknall, 335 N.J. Super. 52, 56 (Law Div. 2000), a criminal defendant made
statements to an investigator from the Bail Unit of the Criminal Case Management Division of
the State Judiciary while the investigator was performing an interview to determine if the
defendant was eligible for representation by the Public Defender. During the course of the
interview, the defendant, who was charged with aggravated assault and endangering the welfare
of a child, made an admission to the investigator regarding his touching of the victim. Id. at 54.
The investigator then advised an Assistant Prosecutor of the statement. Id. at 54. The Law
Division held that the statement was protected by the attorney-client privilege, and further, that
the privilege was not waived. Id. at 54-59. The Law Division quoted Trilogy for the proposition
that “[i]nadvertent disclosure through mere negligence or misfortune should not be deemed to
abrogate the lawyer-client privilege.” Blacknall, 335 N.J. Super. at 59 (quoting Trilogy).
In Adler v. Shelton, 343 N.J. Super. 511, 531 (Law Div. 2001), a home construction
defect case, defendants moved for the production of a draft expert report and invoices from the
expert where such items had been accidentally sent by the expert to plaintiffs’ general contractor
(a non-party in the litigation) instead of plaintiffs’ attorney. The Law Division observed that if
the documents were considered work product, the disclosure would be inadvertent and the work
product doctrine would not have been waived. Adler, 343 N.J. Super. at 519 (citing Trilogy).
However, the Law Division did not approach the waiver issue because it determined that the
work product doctrine did not apply to the documents. Adler, 343 N.J. Super. at 531.
In Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 550 (App. Div. 2003), a
breach of contract case, the Appellate Division considered, among other things, whether a letter
inadvertently produced in discovery could be used at trial. Id. at 531. At issue was whether the
letter was protected work product. Id. at 550-51. The Appellate Division held that the document
was not work product. In passing, the Appellate Division noted that it has previously questioned
whether a “privilege is destroyed by any involuntary disclosure, including a mistaken one”. Id.
at 550-51 (citing Trilogy, 279 N.J. Super. at 443; J.G., 261 N.J. Super. at 419-20).
In Kinsella v. NYT Television, 370 N.J. Super. 311 (App. Div. 2004), plaintiff sued NYT
Television and The New York Times Company (collectively, “NYT”) after NYT videotaped him
in the emergency room for a television show. In a prior opinion, the Appellate Division ruled
that the videotaping was newsgathering and thus protected by the newsperson’s privilege. Id. at
313. The Appellate Division further ruled that if NYT intended to use any part of the videotape
or any outtakes that were not part of the broadcast at trial, NYT would need to produce such
footage prior to trial. Subsequent to the prior decision, NYT decided to use parts of the
videotape at trial to show that plaintiff consented to the videotaping. Id. at 314. Thus, four
videocassettes were produced to plaintiff. However, the copies provided to plaintiff included not
just footage of plaintiff, but of other patients in the emergency room. Id. When NYT’s counsel
realized that additional footage had been produced, he asked that the footage be returned, but
plaintiff refused. Id. at 315. NYT moved for a protective order requiring the return of the
footage of other patients, which the Law Division denied. On appeal, the Appellate Division
held that the footage of other patients had to be returned, and furthermore, that NYT did not
waive the newsperson’s privilege by the disclosure of footage containing other patients. Id. at
As in Trilogy, the Appellate Division noted the three approaches to the issue of waiver of
a privilege, namely the “strict” or “traditional” approach (in which the inadvertent disclosure of
privileged information results in a waiver); the “subjective intent” approach (in which an
inadvertent disclosure never results in a waiver unless the party protected by the privilege
intended to waive it); or the “middle” or “balancing of factors” test (in which a balancing test is
used to determine whether an inadvertent disclosure may be found to constitute a waiver, citing
Ciba-Geigy, supra, 916 F.Supp. at 411). The Appellate Division further noted that the Law
Division in Trilogy had adopted the second approach. Kinsella, 370 N.J. Super. at 317. Upon
review of these approaches, the Appellate Division declined to adopt any approach, instead
holding that no finding of a waiver was warranted where the inadvertence was due to the error of
counsel, not the media organization, and furthermore, there was no justifiable reliance by
plaintiff on the disclosure. Id. at 318.
Recently, in Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010), the Supreme
Court considered whether pre-suit emails that plaintiff sent to her attorney while using plaintiff’s
personal, password-protected web-based email account on a company-issued laptop were
protected from disclosure. In discovery, the employer discovered the emails during a forensic
review of plaintiff’s computer. Plaintiff’s counsel demanded that the emails be returned to
plaintiff. Id. at 307. Counsel for the employer produced the documents but contended that the
company had a right to review them. The Law Division held that plaintiff waived any privilege
with respect to the documents, but the Appellate Division reversed, finding that counsel for the
company violated R.P.C. 4.4(b) by reading and using privileged documents. Id. at 308. The
Supreme Court held that the attorney-client privilege applied to the documents. Id. at 323. In
addition, plaintiff did not waive the attorney client privilege. The Supreme Court noted:
A person waives the privilege if she, “without coercion and with
knowledge of [her] right or privilege, made disclosure of any part
of the privileged matter or consented to such a disclosure made by
anyone.” N.J.R.E. 530 (codifying N.J.S.A. 2A:84A-29). Because
consent is not applicable here, we look to whether Stengart either
knowingly disclosed the information contained in the e-mails or
failed to “take reasonable steps to insure and maintain their
confidentiality.” Trilogy Commc'ns, supra, 279 N.J. Super. at 445-
48, 652 A.2d 1273.
As discussed previously, Stengart took reasonable steps to keep
discussions with her attorney confidential: she elected not to use
the company e-mail system and relied on a personal, passwordprotected,
web-based account instead. She also did not save the
password on her laptop or share it in some other way with Loving
As to whether Stengart knowingly disclosed the e-mails, she
certified that she is unsophisticated in the use of computers and did
not know that Loving Care could read communications sent on her
Yahoo account. Use of a company laptop alone does not establish
that knowledge. Nor does the Policy fill in that gap. Under the
circumstances, we do not find either a knowing or reckless waiver.
Stengart, 201 N.J. at 323-324.
In a footnote, the Supreme Court observed that it did not need to determine which standard
applied to the issue of a waiver of privilege, i.e. whether the test was whether Stengart
“knowingly disclosed the information contained in the e-mails” or failed to “take reasonable
steps to insure and maintain their confidentiality.” Id. at 324, n. 5 (citing, inter alia, Kinsella and
Trilogy). The Court remanded for a determination as to appropriate sanctions.
To summarize, there has been no formal test adopted by the New Jersey Supreme Court
or the Appellate Division governing the waiver of the attorney-client privilege or work product
doctrine. Trilogy has been cited most often in cases in which the issue of waiver is raised.
Under Trilogy, the “mere inadvertent production of a privileged document by the attorney does
not waive the client’s privilege.” Trilogy, 279 N.J. Super. at 445-446.
VII. Action By Other States
Other states have not been quick to adopt companion provisions to Fed. R. Evid. 502.
Tex. R. Civ. P. 193.3 provides a procedure for the return of documents that are inadvertently
disclosed. As indicated below, New Jersey has already adopted such a procedure. New
Hampshire has adopted Rule 511 to its Rules of Evidence, which provides, “A claim of privilege
is not defeated by a disclosure that was compelled erroneously or by a disclosure that was made
inadvertently during the course of discovery.” Tennessee has adopted Rule 502 to its Rules of
Evidence, which provides:
Inadvertent disclosure of privileged information or work product
does not operate as a waiver [if]
(1) the disclosure is inadvertent,
(2) the holder of the privilege or work-product protection took
reasonable steps to prevent disclosure, and
(3) the holder promptly took reasonable steps to rectify the error.
Tenn. R. Evid. 502.
Thus, not all states have adopted the language of Fed. R. Evid. 502, and of the states that have
amended their Rules of Evidence, not all such states have incorporated the entirety of Fed. R.
VIII. Recommendation of the Privileges Subcommittee
For various reasons, the Privileges Subcommittee does not recommend that a rule similar
to Fed. R. Evid. 502 be added to the New Jersey Rules of Evidence at this time.
First, there is a lack of extensive New Jersey authority that directly addresses this
question. This is clear from the Stengart decision. There, the Supreme Court identified two
different approaches to the issue of whether an inadvertent disclosure results in a waiver, namely
the second approach embodied in Fed. R. Evid. 502(b) and the third approach applied in Trilogy.
Stengart, 201 N.J. at 324, n. 5 (citing Kinsella and Trilogy).4 However, the Supreme Court
expressly declined to choose a particular approach. Stengart, 201 N.J. at 324, n. 5. Accordingly,
the Privileges Subcommittee does not believe it would be appropriate to adopt a particular rule at
this time where the Supreme Court had the opportunity to do so in Stengart but declined.
Second, the Privileges Subcommittee is guided by Kinsella. There, the Appellate
Division observed that in Trilogy, the Law Division did not adopted the approach taken in Ciba-
Geigy. Ciba-Geigy is the case that was applied by the District Court of New Jersey in the recent
Peterson case that addressed Fed. R. Evid. 502. In Peterson, the District Court specifically
4 As already noted, Kinsella identified three approaches. Kinsella, 370 N.J. Super. at 317.
Kinsella noted the first (or “strict”) approach in addition to the second and third approaches.
Under the first approach, any disclosure of privileged information, even if inadvertent, operates
as a waiver of the privilege.
observed that Fed. R. Evid. 502 requires the same analysis that federal courts in New Jersey were
already applying under Ciba-Geigy. Thus, if the Rules of Evidence Committee were to adopt
Fed. R. Evid. 502, it would, in effect, be making Ciba-Geigy the law in the New Jersey, even
though Trilogy declined to adopt the Ciba-Geigy approach.
Third, the case law interpreting the new provisions of Fed. R. Evid. 502 remains still
limited. Therefore, it remains unclear how the federal courts will necessarily interpret and apply
the rule. It is also unclear how far the federal courts will go in interpreting whether a waiver has
occurred. The District of New Jersey has already held a waiver to apply under Fed. R. Evid.
502. It is not entirely clear whether the same result would obtain under the New Jersey cases in
light of New Jersey’s strong policy favoring privileges.
Finally, the Privileges Subcommittee believes that case law should develop under other
New Jersey provisions and rules before a new rule is adopted. For example, in Stengart, the
Supreme Court noted that R.P.C. 4.4(b) operates as an ethical limitation on any attorney who
seeks to use information that is protected by the attorney-client privilege. Stengart further
provides guidance as to what an attorney should do in such a situation:
To be clear, the Firm did not hack into plaintiff's personal account
or maliciously seek out attorney-client documents in a clandestine
way. Nor did it rummage through an employee's personal files out
of idle curiosity. Instead, it legitimately attempted to preserve
evidence to defend a civil lawsuit. Its error was in not setting aside
the arguably privileged messages once it realized they were
attorney-client communications, and failing either to notify its
adversary or seek court permission before reading further. There is
nothing in the record before us to suggest any bad faith on the
Firm's part in reading the Policy as it did. Nonetheless, the Firm
should have promptly notified opposing counsel when it
discovered the nature of the e-mails.
Stengart, 201 N.J. at 326.
Moreover, R. 4:10-2(e)(2) provides:
Information Produced. If information is produced in discovery that
is subject to a claim of privilege or of protection as trial
preparation material, the party making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has and may
not use or disclose the information until the claim is resolved. A
receiving party may promptly present the information to the court
under seal for a determination of the claim. If the receiving party
disclosed the information before being notified, it must take
reasonable efforts to retrieve it. The producing party must
preserve the information until the claim is resolved.
The Privileges Subcommittee believes that further case law should develop under these rules for
purposes of determining whether an amendment to the New Jersey Rules of Evidence is
necessary. At this time, there are no reported decisions addressing R. 4:10-2(e)(2).
For all of these reasons, the Privileges Subcommittee does not recommend the adoption
of a companion provision to Fed. R. Evid. 502 at this time.
To: Committee on Evidence
From: Subcommittee on Privileges
Re: Comprehensive Mental-Health-Provider Privilege
Date: November 1, 2010
In New Jersey, as in many states, the extent to which a patient’s communications with a
mental health professional is privileged depends on the license or educational degree of the
mental health professional consulted. New Jersey has adopted separate and distinct privileges
governing communications with psychologists, N.J.R.E. 505; psychiatrists, N.J.R.E. 506; social
workers, N.J.R.E. 518; victim counselors, N.J.R.E. 517; and marriage counselors, N.J.R.E. 510.
The subcommittee recommends that the full Committee seek the Supreme Court’s express
authorization to study and perhaps propose a comprehensive revision of the various and disparate
privileges governing such communications. This memorandum will summarize current law to
highlight differences among these privileges (although a comprehensive analysis of existing
privileges is beyond the scope of this memorandum). The memorandum will then discuss
practical problems and policy issues raised by the State’s approach, and review support for a
single comprehensive mental health provider’s privilege.
New Jersey has adopted a variety of privileges governing communications with mental
health professionals. Whether a particular privilege applies to a communication depends
principally upon the license or professional credentials of the mental health professional, but also
the nature of the communication. Whether the particular privilege actually shields the
communication from disclosure also depends on the exceptions to the privilege expressly
adopted in the particular Rule, as well as judicially engrafted exceptions.
New Jersey’s law on mental health privileges has created something of a hierarchy of
privileges. Communications with psychologists are afforded greater protection than
communications with psychiatrists. State v. McBride, 213 N.J. Super. 255, 270 (App. Div.
1986), certif. denied, 107 N.J. 118 (1987) (“the psychologist-patient privilege affords even
greater confidentiality than the physician-patient privilege”). However, in some respects, the
psychologist-patient privilege may be less far-reaching than the psychiatrist-patient privilege, as
discussed below. In other respects, however, “the marriage and family therapist privilege . . .
may be somewhat broader than the psychologist-patient privilege.” Kinsella v. Kinsella, 150
N.J. 276, 298, n. 1 (1997). Also broad is the victim counselor privilege. The court in State v.
J.G., 261 N.J. Super. 409, 419 (App. Div.), certif. denied, 133 N.J. 436 (1993) called the
privilege “absolute.” Weakest among the mental health privileges is the social worker privilege.
The psychologist-patient privilege governs “confidential relations and communications”
between a patient and a “licensed practicing psychologist.” N.J.R.E. 505. However, practicing
psychologists certified by the Department of Education may provide psychological services to
school children without becoming a “licensed practicing psychologist.” N.J.S.A. 45:14B-6(g).
Consequently, the privilege apparently would not cover communications with such a
psychologist. Also, the privilege would not cover other trained psychologists who may serve
patients without becoming licensed. See N.J.S.A. 45:14B-6(c) (psychological interns); -6(d)
(out-of-state psychologist practicing limited hours in New Jersey); -6(e) (practicing psychologist
with temporary permit to practice). Also, the privilege would apparently not cover a person
whom the patient reasonably believed was a “licensed practicing psychologist,” but was not.
The patient-psychologist privilege is defined by simply equating it with the attorneyclient
privilege. “The confidential relations and communications between and among a licensed
practicing psychologist and individuals, couples, families or groups in the course of the practice
of psychology are placed on the same basis as those provided between attorney and client . . . .”
N.J.R.E. 505. However, “the public policy behind the psychologist-patient privilege is in some
respects even more compelling” than the policy behind the attorney-client privilege. Kinsella v.
Kinsella, 150 N.J. 276, 330 (1997).
The Rule provides few explicit exceptions. The privilege does not apply to: commitment
or guardianship actions where the client’s condition is an issue; actions where the client seeks
damages based on criminal conduct; actions involving the validity of a client’s will; or issues
involving testate or intestate succession from a deceased client. N.J.R.E. 505. It is unclear
whether the psychologist-patient privilege bars a participant in a group therapy session with a
psychologist from disclosing otherwise confidential communications by a fellow participant.
Kinsella v. Kinsella, supra, 150 N.J. at 304.
The psychiatrist-patient privilege is covered by the physician-patient privilege. N.J.R.E.
506. This privilege covers communications to a licensed physician as well as a person whom the
patient “reasonably believed . . . to be authorized to practice medicine.” N.J.R.E. 506(a). The
privilege also covers communications made to intermediaries between the patient and physicians,
that is, “persons to whom disclosure was made because reasonably necessary for the
transmission of the communication . . . .” N.J.R.E. 506(b).
The privilege covers “confidential communications,” as defined, but only if “the patient
or the physician reasonably believed the communication to be necessary or helpful to enable the
physician to make a diagnosis of the condition of the patient or to prescribe or render treatment
therefore.” N.J.R.E. 506(b). The privilege is subject to the same express exceptions applicable
to the psychologist-patient privilege dealing with commitment and guardianship actions;
damages based on criminal conduct; validity of a will; and testate or intestate succession.
N.J.R.E. 506(c). But, the privilege is also subject to an express exception for actions where the
patient’s condition “is an element or factor of the claim or defense of the patient or of any party
claiming through or under the patient or claiming as a beneficiary of the patient” under a contract
with the patient or insurance for the patient. N.J.R.E. 506(d).
By contrast, even where a person’s psychological condition is put in issue, a court must
apply a three-part test to determine whether the patient has waived the psychologist-patient
privilege. The party seeking disclosure must demonstrate a legitimate need for the evidence; the
evidence must be relevant and material to the issues before the court; and it must appear that the
information cannot be secured from any less intrusive source. Kinsella v. Kinsella, supra, 150
N.J. at 299 (psychologist-patient); In re Kozlov, 79 N.J. 232, 243-44 (1979) (attorney-client).
However, there is authority for piercing the psychologist-patient privilege. See also State v.
L.J.P., 270 N.J. Super. 429 (App. Div. 1994) (reversing trial court’s refusal to pierce alleged
aggravated sexual assault victim’s psychologist-patient privilege); State v. McBride, supra, 213
N.J. Super. at 271 (holding it was error for trial court to refuse to review psychologist-patient
records in camera, thereby allowing “victim’s uncorroborated tale of the events in question to
The “marriage counselor privilege” renders confidential any communication between a
“marriage and family therapist” and a “person or persons in therapy.” N.J.R.E. 510. The
Practicing Marriage Counseling Act authorizes other professionals, such as social workers,
psychologists, physicians, attorneys, clergy and guidance counselors, to conduct marriage and
family therapy. N.J.S.A. 45:8B-8. Consequently, such persons enjoy the protection of the
marriage counselor privilege, although they are not specifically licensed as marriage counselors.
Wichansky v. Wichansky, 126 N.J. Super. 156, 159 (Ch. Div. 1973) (finding that the marriage
counselor privilege applied to a communications to a licensed practicing psychologist providing
The privilege covers all communications, whether or not intended to be confidential. Id.
at 160. Moreover, the statutory privilege does not include any express exceptions, nor is it
subject to waiver. “This privilege shall not be subject to waiver, except where the marriage and
family therapist is a party defendant to a civil, criminal or disciplinary action arising from the
therapy, in which case, the waiver shall be limited to that action.” N.J.R.E. 510. See also
Wichansky v. Wichansky, supra, 126 N.J. Super. at 160 (noting the prohibition against waiver).
Notwithstanding its broad language, one court has pierced the privilege where the need for the
information significantly outweighed the need for confidentiality. In M. v. K., 186 N.J. Super.
363 (Ch. Div. 1982), the trial judge concluded that enforcement of the privilege violated the
constitutional rights of a child in a custody dispute.
The victim counselor privilege is an “absolute privilege” as noted above. The privilege
covers “any confidential communication.” N.J.R.E. 517(c). The operative language states that
the victim counselor “has a privilege not to be examined as a witness in a civil or criminal
proceeding with regard to any confidential communication.” Ibid. Although this language does
not render the communications themselves inadmissible – but simply shields the counselor from
questioning – the legislative findings make it clear that the drafters intended to accord
confidentiality to “all victims of violence who require counseling. . . “ N.J.R.E. 517(a).
A “victim counselor” means any person who works for an agency assisting victims and
their families, receives forty hours of training, is supervised by a center’s supervisor, and “has a
primary function of rendering advice, counseling or assisting victims of acts of violence.”
N.J.R.E. 517(b). Thus, a victim counselor need have significantly less training that the other
mental health professional covered by other privileges. Moreover, a rape victim who confides in
a victim counselor under the rule would be protected by the “absolute privilege” under N.J.R.E.
517, while a rape victim who confides instead in a licensed practicing psychologist would not, if
the psychologist does not also qualify as a victim counselor. For example, if counseling victims
of violent crime is not “a primary function” of the psychologist, or if the psychologist does not
work for a victim counseling center, then the psychologist would not qualify as a victim
A “victim” means a person who consults such a counselor concerning a “mental, physical
or emotional condition caused by an act of violence.” Ibid. However, the court in State v. J.G.,
supra, held that the privilege extends to communications made by a child-victim’s mother,
characterizing her as a victim of the crime. 261 N.J. Super. at 418.
One interesting aspect of the rule is that a person claiming the rule may need to establish
as a threshold matter that he or she is a victim. In a criminal case where a defendant may
conceivably seek discovery of statements by an alleged victim, the victim’s “victimhood” may
be disputed. Of course, there are many cases where the victimization is undisputed, and the issue
is the identity of the victimizer. The law is unclear as to what kind of showing is necessary to
qualify a person as a victim. In State v. J.G., the court did not address the issue; it applied the
victim-counselor privilege to communications made to counselors after defendant was arrested
and confessed that he had sexually assaulted his children.
Even though the J.G. court characterized the victim counselor privilege as “absolute,” the
court recognized that it may be overridden for compelling reasons. “We hold that in the absence
of compelling circumstances, communications between a crime victim and a counselor consulted
for treatment are absolutely immune from disclosure.” Id. at 419. The privilege must also yield
to a defendant’s constitutional right to confrontation. “We acknowledge that there are situations
in which the defendant’s constitutional rights are paramount and override the State’s policy of
protecting records and documents from disclosure.” Ibid. (citing Pennsylvania v. Ritchie, 480
U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105,
39 L.Ed. 2d 347 (1974)).
The weakest of the legislated mental health privileges appears to be the social worker
privilege, which provides that a licensed or certified social worker “shall not be required to
disclose” confidential information from a social work client unless at least one of five
preconditions is met. N.J.R.E. 518. The five prerequisites to disclosure are: (1) “disclosure is
required by other State law”; (2) failure to disclose would clearly and presently endanger
another’s health or safety; (3) the social worker is a party to litigation; (4) the client is a
defendant in a criminal proceeding and the client’s rights to present a defense would be violated;
or (5) the patient waives the privilege. Ibid. By its terms, the social worker privilege differs
markedly from the privilege afforded communications between patients and psychologists. The
social worker privilege generally allows disclosure if “required by other State law.” For
example, it would appear that by its terms, the social worker privilege must bow to “other State
law” embodied in a criminal defendant’s right to discovery under Rule 3:13-3.
Lastly, the Legislature has provided no testimonial privilege to mental health providers
who do not meet the professional requirements in the statutory privileges. Thus, as discussed
above, certain psychologists are not covered by the psychologist-patient privilege. There also is
no statutory privilege for communications to a counselor who has a masters degree not in social
work but in counseling, unless the counselor provides marriage counseling, N.J.R.E. 510, or is
also a qualified victim counselor. N.J.R.E. 518. The Rules of Evidence do not grant an
evidentiary privilege to certified psychoanalysts – who must have received a master’s degree and
received a graduate certificate in psychoanalysis from a free-standing psychoanalytic institute.
N.J.S.A. 45:14BB-6. Nurse practitioners also fall outside the statutory privileges. However, a
nurse who practices under the supervision of a physician would apparently enjoy the physician’s
privilege. See State v. Philips, 213 N.J. Super. 534, 543, n. 5 (App. Div. 1986) (applying patient
physician privilege to communications with a physician’s nurse, stating, “Any applicable
privilege should also protect confidential statements made to a treating nurse, acting either as an
agent under the supervision of a doctor or in her professional capacity.”) Conceivably, based on
an agency rationale, communications to a mental health professional may be subject to the
privilege applicable to a supervising professional. See, e.g., State v. Davis, 116 N.J. 341, 361
(1989) (communications to attorney’s investigator protected by attorney-client privilege based on
In the subcommittee’s view, New Jersey’s current array of privileges for mental health
providers creates practical problems for courts, providers and patients. It is also difficult to
square the unifying policy that underlies all the privileges – to promote treatment and protect
privacy – with the disparate treatment inherent in the privileges themselves.
As a practical matter, the various privileges add a level of complexity to any court’s
analysis of a claim of privilege over a mental health communication. One hypothetical case may
highlight the problem. A defendant is charged with a sexual assault against a troubled teenager.
The defendant presents evidence to the court that the teenager, who had a reputation for lying
and false claims, had been treated for various mental health conditions at a psychiatric hospital.
Moreover, the defendant claims that the teenager originally alleged that someone other than
defendant had assaulted her. The court grants a motion for in camera review of mental health
records. However, to complete its analysis the court must first determine the professional status
of each treater. A second production is made identifying the licensing and educational
background of treaters. The court then finds records of communications with a psychiatrist, a
psychologist, social workers, and mental health assistants. The court must then subject the
alleged victim’s communications to disparate analysis based upon the different rules and
principles. The task is complex and may lead to inconsistent results.
A case from New York highlights the potential results of privileges based on credential.
In People v. Wilkins, 480 N.E.2d 373 (N.Y. 1985), the New York Court of Appeals reversed a
homicide conviction because a psychologist who treated defendant to determine if he was
suicidal, was permitted to testify that the defendant admitted that his wounds were self-inflicted.
That statement contradicted defendant’s claim that the victim had stabbed him and that he killed
the victim in self-defense. The Court held that if the victim confided in a psychiatrist, the
testimony would have been admissible; but because he spoke to a psychologist, it was not. The
Court was at a loss to justify the Legislature’s distinction, but was bound by it. Id. at 377.
The subcommittee finds it difficult to reconcile the disparate treatment of mental health
privileges with the public policy said to support those privileges. The mental health privileges
are said to satisfy two public policy goals. First, they are supposed to promote the public’s use
of mental health services. The so-called utilitiarian argument is that absent protection of
confidential communications, people would be less willing to seek out treatment and it is in the
public interest that people seek needed mental health treatment.
Some critics question whether, as an empirical matter, anything more than a small
minority of patients would really avoid treatment because of the lack of a privilege. See, e.g.,
“Development in the Law – Privileged Communication: IV. Medical and Counseling Privileges,”
98 Harv. L. Rev. 1530, 1531, 1542-43 (1985) (hereinafter “Development in the Law”)
(questioning the empirical support for the so-called utilitarian justification for a psychotherapist
privilege). The utilitarian argument has also been subject to judicial skepticism. See Jaffee v.
Redmond, 518 U.S. 1, 22-22, 116 S.Ct. 1923, 1934, 135 L. Ed.2d 337, 352-353 (1996) (Scalia,
J., dissenting) (questioning empirical basis for concluding that without psychotherapist privilege,
persons would be deterred from seeking counseling). However, the mental health privileges are
also said to promote personal privacy. In other words, regardless of whether the privilege is
necessary to assure resort to treatment, the privilege is important to protect a patient’s privacy.
The two policy goals are reflected in legislative findings. See, e.g., N.J.R.E. 517(a)
(stating that “[c]ounseling of . . . victims [of violence] is most successful when the victims are
assured their thoughts and feelings will remain confidential and will not be disclosed without
their permission.”). They are also recognized in the case law. See, e.g., Kinsella v. Kinsella,
supra, 150 N.J. at 330 (“[T]he psychologist-patient privilege serves the functional purpose of
enabling a relationship that ultimately redounds to the good of all parties and the public. The
psychologist-patient privilege further serves to protect an individual’s privacy interest in
communications that will frequently be even more personal than those between attorney and
One New Jersey court, struggling to explain why communications with psychologists are
worthy of greater protection than communications with physicians, presented a policy rationale
that overlooks the status of psychiatrists as physicians who may perform psychotherapy in
treatment of mental illness.
[W]e can readily conceive of a reasonable basis to distinguish
between a physician treating a disease and a psychologist
endeavoring to cure an emotional or mental problem. . . . . The
nature of psychotherapy might well justify a greater degree of
confidentiality and protection than is generally afforded medical
treatment of a physical condition. The nature of the
psychotherapeutic process is such that full disclosure to the
therapist of the patient's most intimate emotions, fears and
fantasies is required. The patient rightfully expects that his
personal revelations will not generally be subject to public scrutiny
or exposure. We recognize that "[m]any physical ailments might
be treated with some degree of effectiveness by a doctor whom the
patient did not trust, but a [psychologist] must have his patient's
confidence or he cannot help him."
[Arena v. Saphier, 201 N.J. Super. 79, 86 (App. Div. 1985)
goals, there is little apparent justification for treating a patient’s communications with one mental
health professional differently from communications with a different mental health professional.
For example, it is difficult to defend affording disclosures about sexual identity to a clinical
social worker less protection than the same disclosures to a psychiatrist; and to afford those
disclosures to a psychiatrist less protection than the same disclosures to a psychologist. It also is
difficult to defend affording less protection to disclosures about suicidal ideation made to a
psychiatrist, than disclosures about tidiness in the household made to a marriage counselor.
The differential treatment arguably may have a disparate impact on persons of lesser
means. A person who resorts to a community mental health clinic, as opposed to a private
psychiatrist or psychologist, may be more likely to receive treatment from a social worker, or a
person possessing a masters in counseling. Thus, the hierarchy of mental health privileges may
disadvantage persons of limited financial means. Justice Stevens, writing for the majority in
Jaffee v. Redmond, supra, observed, “Today, social workers provide a significant amount of
mental health treatment. . . . . Their clients often include the poor and those of modest means
who could not afford the assistance of a psychiatrist or psychologist, but whose counseling
sessions serve the same public goals.” 518 U.S. at 15-16, 116 S.Ct. at 1931, 135 L. Ed.2d at 348.
See also R. Auerbach, “Comment: New York’s Immediate Need for a Psychotherapist-Patient
Privilege Encompassing Psychiatrists, Psychologists, and Social Workers,” 69 Alb. L. Rev. 889,
908 (2006) (hereinafter “Comment: New York’s Immediate Need”) (noting that social workers
providing mental health services outnumbered psychologists and psychiatrists combined, and
questioning why low income people who must resort to a low cost clinic staffed by social
workers should receive less protection over their communications than upper-class persons
treated by psychiatrists).
A consolidated mental health privilege has found favor among some jurisdictions and
commentators. In establishing a testimonial privilege for psychotherapists, and then extending it
to social workers, the majority in Jaffee v. Redmond, supra, agreed that if one accepts the policy
goals of the privilege, then the psychotherapist privilege should not discriminate on the basis of
whether the mental health professional holds a M.D., a Ph.D. in Psychology, or a M.S.W. or
Ph.D. in Social Work. “We therefore agree with the Court of Appeals that ‘drawing a distinction
between the counseling provided by costly psychotherapists and the counseling provided by
more readily accessible social workers serves no discernible public purpose.’” 518 U.S. at 17,
116 S.Ct. at 1932, 135 L. Ed.2d at 349 (citation omitted).
Some commentators agree that there is little basis to draw distinctions between the
various reputable mental health professions in affording evidentiary privileges. See, e.g.,
“Comment: New York’s Immediate Need,” 69 Alb. L. Rev. at 906-912 (advocating a
comprehensive psychotherapist privilege encompassing communications to psychiatrists,
psychologists, and social workers); “Note: A Uniform Testimonial Privilege for Mental Health
Professionals,” 51 Ohio St. L. J. 741, 742, 746 (1990) (endorsing a “single, qualified privilege
that covers all mental health professionals” and criticizing “the patchwork development of
privilege law” in the mental health field); “Development in the Law,” 98 Harv. L. Rev. at 1549
(“The legal system’s current distinction between psychotherapists and other professions who
provide similar counseling services is similarly artificial.”). Another commentator suggests a
hybrid approach, that accords a uniform privilege over communications based on both the
credentials and function of the provider of mental health services. C. Dubbelday, “Comment:
The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved,” 34
Emory L. J. 777 (1985) (proposing that a privilege should extend equally to communications to
licensed mental health professionals, whether psychologists or psychiatrists, and to such
identified unlicensed mental health counselors performing similar functions, such as rape
The consolidated approach has been endorsed by the National Conference of
Commissioners of Uniform State Laws, which has adopted a uniform privilege for
communications to mental health providers. The approach is a “functional” one, too. The
commissioners believed that covering all communications to social workers, for example, could
extend too far if the social worker was not engaged in treatment of mental or emotional
conditions. See Comment to Rule 503, Uniform Rules of Evidence Act, (1999).
Consolidated privileges have also been adopted in many states. See “Comment: New
York’s Immediate Need,” 60 Alb. L. Rev. at 902-03 (identifying numerous states that “place
psychiatrists, psychologists, and social workers within a single statute” and others that include
psychiatrists and psychologists in the same privilege, but exclude social workers). For example,
California has adopted a single privilege governing confidential communications with a
“psychotherapist,” which is then defined to include various providers of mental health treatment
or counseling. Cal. Evid. Code § 1010.
Under California’s privilege, in some respects it is enough to fall within a particular
professional or licensing category in order to qualify as a psychotherapist. Included are licensed
psychologists, school psychologists, and licensed marriage and family therapists. Cal. Evid.
Code § 1010(b), (d), and (e). On the other hand, other mental health providers must prove both
licensing or participation in a profession and specialization in mental health treatment. Included
are medical doctors specializing in psychiatry, social workers engaged in applied psychotherapy,
registered nurses with a master's degree in psychiatric-mental health nursing, and advanced
practice registered nurses certified as clinical nurse specialists who participate in expert clinical
practice in the specialty of psychiatric-mental health nursing. Cal. Evid. Code § 1010(a), (c), (k),
and (l). Also included within psychotherapists are assistants or interns supervised by persons
already covered by the privilege. They include registered psychological assistants, registered
marriage and family therapist interns, registered associate clinical social workers, certain persons
exempt from the psychology licensing law, psychological interns, and psychological trainees.
Cal. Evid. Code § 1010(f), (g), (h), (i), and (j). Finally, “psychotherapist” includes a person “a
person rendering mental health treatment or counseling services as authorized” by California
law. Cal. Evid. Code § 1010(m).
These various psychotherapists are on an even plane under the evidentiary privilege,
Subject to Section 912 and except as otherwise provided in this
article, the patient, whether or not a party, has a privilege to refuse
to disclose, and to prevent another from disclosing, a confidential
communication between patient and psychotherapist if the
privilege is claimed by:(a) The holder of the privilege. (b) A
person who is authorized to claim the privilege by the holder of the
privilege. (c) The person who was the psychotherapist at the time
of the confidential communication, but the person may not claim
the privilege if there is no holder of the privilege in existence or if
he or she is otherwise instructed by a person authorized to permit
[Cal. Evid. Code § 1014].
California establishes a patient-litigant exception similar to the exception that applies in New
Jersey to the patient-physician privilege. Cal. Evid. Code § 1012.
In sum, there is significant support and precedent for a unified privilege covering
communications between patients and psychotherapists and other persons providing mental
The subcommittee believes that the Evidence Committee should undertake a
comprehensive review of New Jersey’s mental health privileges, to determine whether to
recommend a unified mental health provider’s privilege. The review would consider whether
disparate treatment of mental health patients’ communications is justified, and if so, under what
circumstances. It would consider whether statutory or court-made exceptions to some of the
existing privileges should be included in a unified rule. In performing this review, the
Committee would presumably confer with professional societies and patient groups, to gain their
input about existing privileges and any proposed revisions. Unquestionably, this review would
likely spark some controversy. It would also be a major endeavor. Consequently, before
embarking on such a task, the subcommittee recommends that the full Committee seek
authorization from the Supreme Court for this effort.