Before Judges Havey, Skillman and P.g. Levy.
The opinion of the court was delivered by: Havey, P.j.a.d.
NOT FOR APPROVAL WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 1999
On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
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 attorney-client privilege is codified at N.J.S.A. 2A:84A-20 (N.J.R.E. 504). It states in pertinent part that "communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged . . . ." The attorney-client privilege "recognizes that sound legal advice or advocacy serves public ends and rests on the need to 'encourage full and frank communication between attorneys and their clients.'" United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 561 (App. Div. 1984) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 684, 66 L.Ed.2d 584, 591 (1981)). "'Preserving the sanctity of confidentiality of a client's disclosures to his attorney [promotes] an open atmosphere of trust.'" United Jersey Bank, supra, 196 N.J. Super. at 561 (quoting Reardon v. Marlayne, 83 N.J. 460, 470 (1980)).
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.
Plaintiff's notes were also protected by the work-product privilege. R. 4:10-2(c) ...