On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County.
O'Brien, Scalera and Stern. The opinion of the court was delivered by Scalera, J.A.D.
In this post-judgment divorce action we granted Allen Weingarten (the husband) leave to appeal from an order of the trial court relating to the discovery of evidence assertedly protected by the attorney-client privilege.
Briefly, in January 1986, a final judgment of divorce was entered which incorporated a property settlement agreement by the parties. In May 1986, Gloria Weingarten (the wife) brought a motion to vacate the final judgment of divorce particularly as it related to the division of the marital estate.*fn1
In the accompanying certifications, she claimed that the husband had misled her as to the value of the marital property. Specifically, she alleged that he had represented to her that the property was worth approximately $12,700,000. After the divorce became final, however, she obtained information which led her to believe that the marital assets were worth in excess of $50,000,000. She listed some of the assets which allegedly were not included in the agreement and asserted that during the divorce proceeding, her then attorney, Robert Diamond, had advised her it was necessary "to undertake a complete investigation of the husband's assets and hire appraisers to get values of those assets." However, when the husband reportedly contacted the wife and assured her that he would provide information about the assets, she told Diamond "to hold off on the
appraisers and accountants . . ." The wife then negotiated directly with the husband. According to the wife's certification, "Diamond still felt that we should undertake a review and confirmation of the value of the assets and the accuracy of the listing of the assets themselves." In response, she "told Mr. Diamond that [her] husband had assured [her] of and swore to the accuracy of the statement of assets he supplied. [She] did not want to fight or argue with [her] husband . . ." Although Diamond advised her of the divorce hearing date, she informed him that she would not attend. Finally, in her reply certification, the wife stated that her attorney had informed her "that the cut-off date for assets was the date of the filing of the complaint or the date of the agreement."
In a responding certification, the husband admitted that although the value of the assets in his financial statements was not entirely up to date at the time the agreement was negotiated, those statements did reflect all of his assets and had even been used for other business purposes, such as the procurement of financing. The husband indicated that the items which he had allegedly failed to include in those financial statements had actually been acquired after the property settlement agreement had been negotiated.
In October 1986, in preparation for a plenary hearing on the wife's motion, the trial court issued a schedule for discovery proceedings, including interrogatories and depositions. On March 26, 1987, however, following a motion by the husband, an order was entered which allowed him to discover any relevant matter except that protected by the attorney-client privilege. It directed Diamond to testify and also to produce documents except to the extent that such information also was privileged. The husband sought to prosecute an appeal from that interlocutory order but this court and the Supreme Court both denied him permission to do so at that juncture.
The husband then undertook to depose Diamond and also sent a notice for the wife to produce all documents pertaining
to the property settlement negotiations. In August 1988, during his deposition, Diamond asserted the attorney-client privilege as directed by the wife's present attorney. Frustrated by the assertion of the privilege, the husband's attorney eventually terminated that deposition and filed a motion to compel Diamond to testify more fully, without the protection of the privilege. On January 11, 1989, the trial court issued an order in which it concluded that the wife indeed had waived the attorney-client privilege, but only to a limited extent and it therefore ordered Diamond to answer certain questions but qualified it by indicating that he did not have to answer others. The court further reserved judgment on the husband's request for the production of documents, "pending the receipt of documents by the court. . . ." Orally, the court conditioned this further by stating that the husband first had to produce a list of the desired documents, rather than requiring the wife to reveal an inventory of what documents she possessed so that the husband could select therefrom.
The husband moved for leave to appeal from that order, which we granted. The wife joined in the husband's motion for leave to appeal and in her brief at that point, also took issue with the trial court's conclusion that she had waived the privilege to any degree. However, no notice of motion for leave to cross-appeal was filed by her, and the husband contends that she is therefore precluded from raising any affirmative claims on this appeal. Nevertheless, the claims asserted by her are intertwined with the issues raised by the husband's appeal and are addressed herein.
The husband claims that once the wife had disclosed private communications with her attorney in her certification, she waived that privilege with respect to the subject matter of those statements. Essentially, the husband argues that the wife should not be able to "pick and choose" the ...