Alexander D. Lehrer, J.s.c.
ALEXANDER D. LEHRER. J.S.C.
The inadvertent production of a privileged document in discovery does not constitute a waiver of the attorney-client privilege.
Defendant, Excom Realty, Inc. (Excom) objected at trial to the admission of Exhibit P-25 in evidence. Exhibit P-25 is an unsigned draft letter dated January 31, 1990, from Tricia M. Caliguire of McCarter & English, counsel for Excom, to Arnold Lakind of Szaferman, Lakind, Blumstein, Watter & Blader, counsel for Trilogy. This letter was alleged to be confidential and prepared in draft for submission to Michael Brenner, Excoms's General Counsel, prior to being sent to Trilogy. The document was one of over 5,500 pages of documents produced in discovery and was inadvertently produced to plaintiff.
Excom objects to the admission of Exhibit P-25 in evidence on the grounds that P-25 is a privileged draft letter from retained counsel to the general counsel of Excom. The letter was sent for the purpose of information and approved prior to its being sent to plaintiff. There is no evidence that P-25 was ever received by Excom general counsel, ever transmitted to Trilogy's counsel, nor authorized to be disclosed by Excom.
The court finds P-25 is a confidential and privileged communication within the meaning of N.J.S.A. 2A:84A-20 and N.J.R.E. 504, inadvertently produced in discovery.
EXCOM'S INADVERTENT PRODUCTION OF P-25, A PRIVILEGED DOCUMENT, DOES NOT CONSTITUTE A WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE
There are no New Jersey decisions which consider whether or not the inadvertent production of a confidential attorney-client communication constitutes a waiver of the privilege. In State v. J.G., 261 N.J. Super. 409, 619 A.2d 232 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993), the court held the inadvertent disclosure of a confidential Family Service file did not constitute a waiver of the victim-counselor privilege. The court stated:
We are convinced that the mistaken release of confidential files does not abrogate the victim-counselor privilege, N.J.S.A. 2A:84A-22.15 expressly says that the privilege must be claimed by the counselor and cannot be waived "unless otherwise instructed by prior written consent of the victim." Waiver of the privilege rests solely with the victim, not the counselor. If disclosure of privileged material is wrongfully or erroneously made by the counselor, evidence of the disclosed material is inadmissible. Evid. R. 38. Any other rule would render nugatory this State's strong public policy favoring the confidentiality of communications between victim and counselor.
The issue in terms of the attorney-client privilege is not before us. We question, however, whether our courts would adopt the strict approach and conclude that the privilege is automatically waived by reason of an inadvertent disclosure. See State v. Davis, 116 N.J. 341, 362-63, 561 A.2d 1082 (1989); State v. Loponio, 85 N.J.L. 357, 88 A. 1045 (E & A 1913); State v. Tapia 113 N.J. Super 322, 330, 273 A.2d 769 (App. Div. 1971).
There are three distinct lines of authority ...