An Overview of the Attorney-Client Privilege and the Work-Product Doctrine How Far Do the Privileges Recognized for Confidential Material Extend?
October 2023 Benjamin J. Tartaglia, III, Esquire and Carly May, Esquire
Two privileges recognized in New Jersey allow for certain confidential communications and materials to be withheld from discovery. These privileges are the attorney-client privilege and the work-product doctrine.
Under the attorney-client privilege, confidential communications made by a client to his or her attorney in the course of their professional relationship are privileged. This privilege belongs to the client and means that the client can refuse to disclose such communications, prevent his or her attorney from disclosing it, and in some instances prevent other individuals from disclosing it. This privilege is one of the oldest privileges for confidential communications known to the common law and was created for the purpose of fostering an open atmosphere of trust that will enable the attorney to provide sufficient representation.
This privilege is described in New Jersey Rule of Evidence 504 [formerly Rule 26]. The rule provides that “communications between a lawyer and his client in the course of that relationship and in professional confidence, are privileged.” Evid. R. 504. This privilege is not absolute, however, and will not apply when such communications are made in the presence of another person whose attendance would nullify the privilege. O’Boyle v. Borough of Longport, 218 N.J. 168, 185 (2014). The Court’s characterization here is important because it is the circumstances surrounding this other person’s presence that determine whether the privilege would apply.
Specifically, Courts in New Jersey determined the attorney-client privilege will still apply when such communications are shared with an agent of either the attorney or the client, including experts, consultants, and investigators hired by an attorney. See Coyle v. Estate of Simon, 247 N.J. Super. 277 (App. Div. 1991); State v. Tapia, 113 N.J. Super. 322 (App. Div. 1971); Torraco v. Torraco, 236 N.J. Super. 500 (Ch. Div. 1989). Thus, when statements made by a client are shared with or made to an agent “whose presence and advice are necessary to the legal representation” the privilege will still apply. O’Boyle, 218 N.J. at 185. Similarly, the privilege has also been extended where a client’s confidential communications are either shared with or made to a private investigator that is acting as an agent and “renders services on behalf of the party.” State v. Davis, 116 N.J. 341, 361-62 (1989).
However, where such communications are going to be used as evidence, the privilege is lost. Coyle, 247 N.J. Super. at 282. Courts have determined that these communications are considered to be “used as evidence when used by an expert witness as a basis for opinion testimony.” Id. Thus, confidential statements that are made to or shared with an expert and relied upon by the expert in generating his or her opinion that is intended for use at trial, must be disclosed in discovery. Id. at 282-83. Importantly, though, the party is only required to disclose the portions of the communication that were actually relied upon by the expert. Id.
In addition to the attorney-client privilege, the work-product doctrine provides protections to the materials that a client or their counsel prepares in anticipation of litigation. This doctrine is memorialized in New Jersey Court Rule 4:10-2(c). Specifically, this rule describes the requirements that a party must show in order to obtain materials that are “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent)”. R. 4:10-2(c). In order to obtain such material, the party seeking it must show a substantial need for it and that they are unable to obtain a substantial equivalent of the material by other means without undue hardship. R. 4:10-2(c).
This privilege seeks to protect the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” even where a party can make the required showings under the Court Rules. Rivard v. Am. Home Prod., Inc., 391 N.J. Super. 129, 155 (App. Div. 2007).
As noted specifically in the language of the Court Rule, this privilege will apply to materials prepared by an attorney, a consultant, and an agent. R. 4:10-2(c). The purpose for this was highlighted by the Supreme Court of the United States in stating, “attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” United States v. Nobles, 422 U.S. 225, 238–39 (1975).
The work-product doctrine, however, also has limitations. Specifically, “it has long been established that the doctrine only protects documents or prepared materials; accordingly, it does not protect facts.” Paladino v. Auletto Enterprises, Inc., 459 N.J. Super. 365, 375 (App. Div. 2019). Thus, while a document itself may not be discoverable under this doctrine, the facts contained therein may be.
Regarding statements, Courts have determined that statements prepared in the normal course of business are not protected. Id. However, a “statement [that] was prepared in anticipation of litigation …is protected by the work product privilege.” Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144, 147 (App. Div. 2001). A statement will be considered to have been prepared in anticipation of litigation, “if the dominant purpose in preparing the document was concern about potential litigation and the anticipation of litigation was objectively reasonable.” Id. at 150. However, if a fact witness testifies at trial, the Courts have required that “the factual statement of that witness must be produced on demand for use in cross-examination as a potential tool for impeachment of credibility.” Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 100 (App. Div. 1991).
The Chancery Division in New Jersey relied upon these privileges in determining that a defendant was not entitled to depose an investigator hired by the plaintiff. Torraco, 236 N.J. Super. at 502-503. In this matter, the defendant sought to obtain information and documents in the possession of a detective hired by plaintiff. Id. at 501. The Court acknowledged that the documents obtained as a result of the detective efforts were discoverable, but that allowing the deposition of this detective would breach the Court Rules and Rules of Evidence because “the detective investigator as agent of the attorney is sheltered and protected under the mantle of the lawyers attorney-client and work product privileges.” Id. at 503.
Similarly, in a Federal Court case situated in New Jersey, the Court determined that to seek oral testimony of a detective by grand jury subpoena went to “the core of the work product of an agent of the attorney”. Appeal of Hughes, 633 F.2d 282, 290 (3d Cir. 1980). The examination of the detective regarding the interviews conducted “could have created not merely the danger, but also the actuality of converting an agent for the attorney into a witness.” Id. It is this problem, i.e. transforming a party’s agent into a witness, that Courts have considered in deciding to shelter and protect a party’s agent. Id.; Torraco, 236 N.J. Super. at 502-503.
These privileges highlight the importance of protections afforded to confidential information provided for the purposes of litigation. It is imperative for adequate representation that parties and their counsel be permitted to share such confidential communications with their agents without waiving the privilege and that materials produced by a party’s agent for the purpose of litigation will also be protected. Thus, these privileges allow parties and attorneys to use and rely on the assistance of their agents without concern that doing so would require disclosure of the confidential information shared with or prepared by the agent.