On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County.
Approved for Publication May 23, 1997.
Before Judges Dreier, D'Annunzio and Newman. The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
The opinion of the court was delivered by
Defendants appeal, pursuant to leave granted, from an order granting plaintiffs' motion to compel the deposition of defendantWilliam Myer and his attorney, Henry Gurshman, "with respect to matters falling within the attorney client privilege."
Plaintiffs, Benjamin Dontzin and his wife Nancy, entered into a contract with defendants, William Myer and his wife Susan, in which defendants agreed "to purchase real property consisting of 130 plus or minus acres, with farmhouse and other improvements situate thereon, located in the Township of Lebanon, Hunterdon County
By letter dated August 23, 1995, defendants' lawyer, Gurshman, advised plaintiffs' lawyer that "my clients have advised me that they wish to withdraw their offer to purchase your clients' property as embodied in the contract which I sent to you in my letter of August 9, 1995." Gurshman requested the return of his clients' deposit. The record establishes that on August 22, 1995, defendants contracted to buy a property in Union Township, Hunterdon County for $600,000.
By letter dated November 22, 1995, Gurshman wrote to plaintiffs' lawyer explaining defendants' position:
In the above matter, my clients' position is that they contracted to purchase two specifically designated Lots on the Tax Map, that this was the description incorporated into the contract, and that they will not purchase the property since the title search has revealed that your clients do not in fact own all of the property which they purported to sell.
Plaintiffs commenced this action for breach of contract in July 1996. In their answer to the complaint, defendants alleged that plaintiffs had breached the contract and that there was a failure of consideration. According to Gurshman's certification in opposition to plaintiffs' discovery motion, these defenses are based on plaintiffs' alleged lack of title to all of Block 57, Lots 27 and 28.
In granting plaintiffs' motion, the trial court relied on In re Kozlov, 79 N.J. 232, 398 A.2d 882 (1979), which recognized that the attorney-client privilege may be pierced in certain circumstances where there is a legitimate need for the evidence, the evidence is relevant and material to the issues in a case, and the information could not be secured from a less intrusive source. Id. at 243-44. We reproduce the trial court's application of Kozlov in the present case:
This case does meet the first requirement; namely plaintiffs' legitimate need for the evidence.
To be successful, plaintiffs need to prove that at the time the contract was signed, defendants knew where the ...