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Conforti & Eisele Inc. v. Division of Building and Construction

June 25, 1979

CONFORTI & EISELE, INC., A NEW YORK CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, PLAINTIFF,
v.
THE DIVISION OF BUILDING AND CONSTRUCTION, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, ET AL., DEFENDANTS



Marzulli, J.s.c.

Marzulli

Conforti & Eisele, a general contractor, was the successful bidder on certain phases of the construction of the New Jersey College of Medicine and Dentistry. The State Division of Building and Construction (hereinafter referred to as the State) divided the construction work into five phases. Conforti & Eisele (hereinafter Conforti was awarded the contracts for phrases III and V. The contracts were performed with difficulties and delays which ripened into a lawsuit filed by Conforti against the State and others. The basic issue to be litigated at that trial is to determine which party was legally responsible for the "extras" and other items of damage Conforti alleges it suffered.

Since the suit involves highly technical matters in the fields of civil engineering and construction, each party has endeavored to retain an expert to analyze the merits of its legal position and issue an expert report. Conforti retained Hill International, Inc. (Hill) as an expert to aid it in the litigation involving phases III and V. The State, for the reasons set out below, moves to bar Conforti from utilizing Hill as an expert for the phase III and V litigation.

The State's position is that since it had previously retained Hill on phase II, another phase of the construction of the College of Medicine and Dentistry, Conforti should now be enjoined from employing Hill for these two phases of the same project. This injunction is necessary, the State contends, to protect confidential communications made by representatives of the State to Hill before and during the time Hill was employed as the State's expert on phase II.

A hearing was held to determine the propriety of granting what can only be referred to as a unique remedy for an unusual problem.

In making this decision, I must balance two important interests. On the one hand, there is Hill's right to pursue its professional calling and the economic hardship it would suffer if I were to deny Hill its business relationship with Conforti. On the other hand, there exists the strong potential of a conflict of interest and the likelihood the State will suffer by having its confidences revealed to its adversary. Since there is no assertion that without Hill plaintiff is deprived of the use of an expert, Conforti's interest is comparatively weak.

There are two prongs to the State's argument: the attorney-client privilege and fundamental fairness. Each will be discussed separately below.

The attorney-client privilege, set out in N.J.S.A. 2A:84A-20, protects not only communications between an attorney and his client but also extends to communications made to any agent of the attorney. Applying the privilege to the present action, the State contends Hill was an agent of its attorney when Hill was engaged as an expert consultant for phase II. Before, during and after this relationship between Hill and the State, the State's attorney imparted confidences to Hill and the State permitted Hill free access to its files. Since Hill was the State's expert, both the State and its attorney felt confident that they could confide in Hill without fear that Hill would in any way misuse this information. Now that Hill is retained by Conforti, the State's adversary in phases III and V, the State argues the attorney-client privilege should be employed in such a way as to prevent any possible disclosures by Hill to Conforti of any confidences imparted to Hill by the State or its legal counsel.

Conforti argues that even if the attorney-client privilege applies to shield communications with regard to phase II between July and August 1978, the privilege should not extend to phases III and V, the only two phases involved in this lawsuit. Conforti also argues that the privilege should not extend to any communication made before July 1978 or after August 1978,

since Hill's employment by the State on phase II existed only for that short period. Finally, Conforti contends the privilege should protect only those communications made by representatives of the State, and not those made by the State's attorney.

I make the following factual findings:

1. Hill International, Inc., holds itself out as a firm of experts providing litigants with opinions and reports relating to all phases of construction work. Their expertise includes legal, accounting, engineering, architectural and many other facets of construction work. The ...


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