APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-905-98T5
ROSS HANNAN and ERICA
HANNAN,
Plaintiffs-Appellants,
v.
ST. JOSEPH'S HOSPITAL AND
MEDICAL CENTER; FRANK YUPPA,
M.D., CHAIRMAN OF RADIOLOGY;
LEE SNIPES, BIOMEDICAL
ENGINEER; MANNY CHRISTAKOS,
M.D.; DR. MARK NEEDLE; JOSEPH
VITALE, M.D.; FRANCIS FERRANTE,
M.D.; and WEST PATERSON FAMILY
MEDICAL CENTER,
Defendants-Respondents.
__________________________________
Submitted January 4, 1999 - Decided February
2, 1999
Before Judges Havey, Skillman and P.G. Levy.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County.
Lum, Danzis, Drasco, Positan & Kleinberg,
attorneys for appellants (Cynthia A. Matheke,
of counsel and on the brief).
Reiseman, Sharp, Kelsey & Brown, attorneys
for respondent Manny Christakos, M.D. (Meghan
E. Walsh, on the brief).
Connell, Foley & Geiser, attorneys for
respondents Joseph Vitale, M.D., Francis
Ferrante, M.D. and West Paterson Family
Medical Center, rely on the brief submitted
on behalf of respondent Manny Christakos,
M.D.
Hein, Smith, Berezin, Maloof, Davidson &
Jacobs, attorneys for respondents St.
Joseph's Hospital and Medical Center, Frank
Yuppa, M.D. and Lee Snipes, rely on the brief
submitted on behalf of respondent Manny
Christakos, M.D.
Philip F. Mattia & Associates, attorneys for
respondent Mark Needle, M.D., rely on the
brief submitted on behalf of respondent Manny
Christakos, M.D.
The opinion of the court was delivered by
HAVEY, P.J.A.D.
By leave granted, plaintiffs appeal from a pretrial order
entered in this medical malpractice case. The order compels
plaintiff Ross Hannan to disclose a chronology of events in the
form of "notes" he prepared relating to the care received during
his treatment and hospitalization. Plaintiff prepared the notes
in accordance with his attorney's instructions in anticipation of
instituting suit. The motion judge concluded that since
plaintiff had referred to the notes in answering interrogatories,
he waived any attorney-client privilege afforded by N.J.S.A.
2A:84A-20 (N.J.R.E. 504). We reverse and remand for further
proceedings.
Plaintiff, a diabetic, underwent an above-the-knee
amputation of his right leg at defendant St. Joseph's Hospital
and Medical Center (St. Joseph's). In their complaint,
plaintiffs allege that St. Joseph's and its employees, and
defendants Frank Yuppa, M.D. and Lee Snipes, were negligent in
their diagnoses and in failing to maintain proper radiologic and
diagnostic equipment at the hospital "to facilitate a timely and
exact diagnosis" of plaintiff's condition. Plaintiffs also
charge that defendants Manny Christakos, M.D., Mark Needle, M.D.,
Joseph Vitale, M.D., and Francis Ferrante, M.D., were negligent
in their treatment of plaintiff during the hospitalization.
A week after being released from the hospital, plaintiff
retained counsel, who advised him to prepare a "chronology of
events to the best of his recollection in order to communicate to
counsel the order of events and better facilitate his
representation." Plaintiff prepared the notes and forwarded them
to his attorney. Copies were made by the attorney and the
original notes were returned to plaintiff. According to
plaintiff's attorney, "the[] notes were used by both [plaintiff]
and myself in preparation of his answers to Interrogatories prior
to the time that those answers were submitted to the defendants."
Plaintiff acknowledges that he referred to the notes in answering
the interrogatories. During his deposition plaintiff referred to
the interrogatories to refresh his recollection while being
deposed.
Defendants Christakos and Needle moved to compel production
of plaintiff's notes. Plaintiff resisted disclosure, citing the
attorney-client and work-product privileges. The motion judge
ordered that the notes be disclosed, reasoning that plaintiff had
waived the alleged attorney-client privilege by utilizing them in
preparing answers to interrogatories. Citing Coyle v. Estate of
Simon,
247 N.J. Super. 277 (App. Div. 1991) and N.J.R.E. 612, the
judge observed that "once a party utilizes those notes whether it
be to answer interrogatories, to assist in answering inter
rogatories . . . or in anticipation to testify at trial or at
depositions, there is a waiver." At plaintiffs' motion for
reconsideration, which was denied, the motion judge elaborated,
stating that a party "cannot read something, look at something,
use those notes to jog one's memory or refresh one's memory and
then not be subject to cross examination based on those very
notes the witness or party has been utilizing."
The privilege applies to "communications" between the lawyer and his client; the "communications" must be made "in professional confidence." N.J.R.E. 504; Coyle, supra, 247 N.J. Super. at 282. In other words, the privilege "accords the shield of secrecy only with respect to confidential communications made within the context of the strict relation of attorney and client." United Jersey Bank, supra, 196 N.J. Super. at 562. If the purpose of the communication is to aid the attorney in giving legal advice to his client or to prepare for litigation, then the privilege applies. Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 551 (1997).
Here, plaintiff's attorney instructed plaintiff to prepare a chronology of facts relating to his medical treatment. Plaintiff prepared such chronology in the form of notes and forwarded the notes to his attorney. The notes, when forwarded to counsel, were clearly "communications between lawyer and his client in the course of that relationship. . . ." N.J.R.E. 504; N.J.S.A. 2A:84A-20; see Coyle, supra, 247 N.J. Super. at 281 ("[a]t the time they were given, plaintiffs' written statements to their attorney reciting facts relating to their claims were protected by the attorney-client privilege"); see also Macey v. Rollins Envtl. Servs. (N.J.), Inc., 179 N.J. Super. 535, 540 (App. Div. 1981) (holding that statements prepared by corporate agent at the behest of the corporation's general counsel were protected by the attorney-client privilege). In addition, such "communications" carry a presumption of confidentiality. See Biunno, Current N.J. Rules of Evidence, Comment 8 to N.J.R.E. 504(3) (Gann 1999). The notes were therefore protected by the privilege at the time they were forwarded to counsel.
Subject to the provisions of R. 4:10-2(d), a party may obtain discovery of documents and tangible things otherwise discoverable under R. 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
[Emphasis added.]
Here, the notes in question, were "prepared in anticipation of
litigation . . . by . . . another party," the plaintiff. In Roe
v. Roe,
253 N.J. Super. 418 (App. Div. 1992), plaintiff kept a
diary about specific events occurring between herself and her
husband against whom she later filed a domestic violence
complaint. Plaintiff's counsel had directed plaintiff to keep
the diary after she consulted him about her marital problems.
Id. at 433. The trial judge decided the diary was work-product
prepared at the request of counsel and that any privilege or
protection had not been waived, and therefore quashed defendant's
subpoena demanding its production. Ibid. We found no abuse of
discretion in the judge's evidentiary ruling. Ibid.
So too here. According to plaintiff's counsel, the
plaintiff's notes were prepared at counsel's behest to "better
facilitate his representation." Defendants concede that the
notes were prepared in anticipation of litigation. Plaintiff's
counsel may use the notes to determine which legal theories of
medical malpractice are best supported by plaintiff's factual
recollections.
N.J.S.A. 2A:84A-29 (N.J.R.E. 530) addresses waiver and provides in part:
A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.
On its face, this rule appears to be inapplicable. At best it
may be argued that subsection (b) applies (i.e., disclosure of
privileged matter). However, there was no "disclosure" of
privileged communication to a third party. Plaintiff merely used
his notes to refresh his memory prior to answering inter
rogatories.
Citing Coyle, supra,
247 N.J. Super. 277, the motion judge
found a waiver of the attorney-client privilege because, as
noted, plaintiff had utilized the notes in answering
interrogatories. In Coyle, a medical malpractice action,
plaintiffs each gave their attorney a written statement in which
they recited the factual basis of their claims against
defendants. Id. at 281. The attorney in turn gave copies of the
statements to two expert witnesses who were expected to testify
on plaintiffs' behalf at trial. Both experts read the
statements, but could not recall which portions of the
statements, if any, they relied on in forming the opinions
expected to be given at trial. Ibid. Although we found that the
statements were protected by the attorney-client privilege, we
held that plaintiffs waived the attorney-client privilege when
the statements were submitted to the experts. We observed,
"where the client expects to use the communication itself as
evidence, it is no longer secret. The privilege is thereby lost,
and the communication must be disclosed in discovery." Id. at
282.
Our holding in Coyle was anchored to the application of
R. 4:10-2(d)(1), which provides in relevant part:
A party may through interrogatories
require any other party to disclose the names
and addresses of each person whom the other
party expects to call at trial as an expert
witness, . . . to state the substance of the
facts and opinions to which the expert is
expected to testify and a summary of the
grounds for each opinion . . . .
We held that R. 4:10-2(d)(1) required plaintiffs to disclose to
defendants "an otherwise privileged communication made to his
or her . . . expert if that communication is used by the expert
to arrive at an opinion that the expert will give at trial."
Coyle, supra, 247 N.J. Super. at 282-83. We cautioned, however,
that only that portion of the plaintiffs' statements used by the
experts "are free of the attorney-client privilege." Id. at 283.
Unlike in Coyle, plaintiff here did not disclose the notes
to an expert for the purpose of having an expert rely on the
notes in rendering an opinion. The notes were disclosed to no
one except plaintiff's attorney, and were utilized solely to
answer interrogatories. Thus, R. 4:10-2(d)(1) is inapplicable.
It is, of course, clear that answers to interrogatories may,
under limited circumstances, be introduced as substantive
evidence at trial. See R. 4:17-8. However, it does not follow
that the process of answering interrogatories (except when a
privileged communication is made to an expert and used by the
expert to arrive at an opinion) is governed by R. 4:10-2(d)(1) or
decisional law addressing the admissibility of expert testimony.
The motion judge also reasoned that the process of answering
interrogatories is controlled by N.J.R.E. 612. That rule,
addressing writings used to refresh memory, states in pertinent
part:
[I]f a witness while testifying uses a
writing to refresh the witness' memory for
the purpose of testifying, an adverse party
is entitled to have the writing produced at
the hearing for inspection and use in cross
examining the witness. . . . If the witness
has used a writing to refresh the witness'
memory before testifying, the court in its
discretion and in the interest of justice may
accord the adverse party the same right to
the writing as that party would have if the
writing had been used by the witness while
testifying.
[Emphasis added.]
N.J.R.E. 612 relates to testimonial evidence. "'[T]estimony' is
in fact a particular kind or species of evidence, namely, that
which comes to the tribunal through living witnesses speaking
under oath or affirmation in the presence of the tribunal,
judicial or quasi-judicial."
29 Am. Jur 2d Evidence § 5 (1994).
The first sentence of the rule is inapplicable because plaintiff
did not refresh his memory by referring to the notes "while
testifying." While it may be so that both answering
interrogatories and testifying occur under oath, it does not
follow that the acts of answering interrogatories and giving
testimony are synonymous. The second sentence does not apply
because defendants did not make the requisite preliminary showing
that plaintiff referred to the notes "to refresh [his] memory
before testifying[.]" In fact, plaintiff expressly stated that
he did not refer to the notes prior to his deposition. We
therefore find no waiver of the attorney-client privilege as it
applies to the notes plaintiff prepared in anticipation of
litigation.See footnote 1
In In re Kozlov, 79 N.J. 232, 243-44 (1979), our Supreme Court defined the "necessary foundations to the valid piercing of [the attorney-client] privilege. . . ." There must be: (1) a legitimate need of the party to reach the evidence sought to be privileged; (2) a showing of relevance and materiality; and
(3) the information cannot be secured from any less intrusive source.
As to the work-product privilege, documents prepared by a party in anticipation of litigation are discoverable if the party seeking discovery "has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." R. 4:10-2(c). The rule is intended to accommodate the competing policy considerations in the discovery area; the interest in privacy of preparation of litigation, and our firm policy that essential justice is better achieved "when there has been full disclosure so that the parties are conversant with all the available facts." Jenkins v. Rainner, 69 N.J. 50, 56 (1976). In Jenkins, supra, for example, the Court held that the plaintiff in a personal injury action was entitled to obtain motion picture films taken of her by defendant's private investigator during a surveillance prior to trial. Id. at 53-57. The Court reasoned that plaintiff had established a "substantial need" to inspect the films since plaintiff would be unduly surprised by production of the film at trial without having the opportunity to challenge the integrity of the film or to develop evidence to counter it. Id. at 57-58. Also, plaintiff could not obtain the substantial equivalent of the film "without undue hardship" because of the uniqueness of the film having been taken eighteen months prior to the deposition of the investigator. Id. at 58. See also In re Environmental Ins. Declaratory Judgment Actions, 259 N.J. Super. 308, 318 (App. Div. 1992) (recognizing that an interview report of a deceased employee would satisfy the substantial need/undue hardship standard under R. 4:10-2(c)).
Whether we apply the test pronounced in Kozlov, supra, or the "substantial need" test under R. 4:10-2(c), we are satisfied that plaintiff's notes need not be disclosed. The information sought by defendants concerning the treatment and events occurring during the hospitalization are presumably recorded in the detailed hospital and physicians' records prepared during plaintiff's hospitalization. Thus, the information can be secured from a "less intrusive source." Kozlov, supra, 74 N.J. at 243. The facts contained in the hospital and physicians' records are the best evidence of what occurred during plaintiff's hospitalization and are at least the "substantial equivalent" of plaintiff's notes. R. 4:10-2(c). Indeed, the hospital records will most likely be more reliable and more authoritative than plaintiff's self-recorded notes. See e.g., N.J.R.E. 803(c)(6) (exception to the hearsay rule relating to business records); N.J.R.E. 803(c)(4) (exception to the rule relating to statements made for purposes of medical diagnosis or treatment). Moreover, if the records were insufficient, defendants had the opportunity to find out exactly what plaintiff recalled concerning the care he received during his deposition.
Reversed and remanded for further proceedings.
Footnote: 1If, of course, plaintiff uses his notes while actually testifying during trial, or reviews the notes to refresh his recollection prior to testifying, N.J.R.E. 612 may be applicable.