N.J. Appeals Court says Client’s Handwritten Diary “Is not Privileged”

Attorney-client privilege?

Evelyn takes a seat in your office and proudly hands you a 22 page, exquisitely detailed, handwritten, chronology of the events leading up to and beyond her decision to sue Dr. Antonin LaScalia for medical malpractice. Evelyn is a meticulous record keeper, and made contemporaneous notes of every conversation she had with her doctor; prior to and after her hip replacement surgery. The summary includes details of two meetings with another lawyer who declined to represent her in this matter.

Flash forward to Evelyn’s deposition 13 months later. During cross-examination by one of the defense attorneys, Evelyn’s memory of some of important events was a little fuzzy. Defense counsel asked Evelyn if there were any documents she could refer to that may refresh her recollection? Evelyn replied, ” I’d love to look at my exquisitely detailed, handwritten, diary to refresh my memory.”

Plaintiff’s lawyer never turned over Evelyn’s diary to defense counsel. Fair or foul?

Was the diary cloaked with attorney-client privilege?

Here are the primary factors to consider:

• Was the summary or chronology of events prepared by a plaintiff at her attorney’s request or direction? Rather than by plaintiff at her own initiative?
• Did the plaintiff keep notes, or create a summary of  her interaction with an individual she intended to sue, to prepare for litigation? If so, the document is privileged

How can attorney-client privilege be pierced?

The attorney-client privilege may, however, be pierced when the opposing party demonstrates a legitimate need for disclosure of the evidence sought to be shielded; proves the relevance and materiality of the evidence to the issue before the court; and establishes that the information in question cannot be secured from any less intrusive source. In re Kozlov, 79 N.J. 232, 243-44 (1979).”

Commentary

This fact pattern poses some interesting challenges:

• How would you establish the point in time Evelyn decided to sue Dr. LaScalia?
• Can Evelyn assert the attorney-client privilege to cover her notes of the conversations with the prior lawyer?
• Is there anything a plaintiff’s lawyer can do to cloak Evelyn’s exquisite chronology with attorney-client privilege at their first meeting?

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