Lawyer-Client Email Held Privileged Despite Its Release to a Third Party
Parrillo wrote for the majority that only officers or directors can waive privilege on behalf of the university.
"Simply put, the authority to waive the attorney-client privilege does not belong to each and every employee of the corporation, but rather is held by the organizational client, namely the officers and directors," he said.
Sharp "does not fit within this category" and "was not acting under the direction of the University when she released the document to the NCAA."
Parrillo said it wasn't necessary for the university to object to the disclosure at the time to preserve the privilege.
Judge Michael Guadagno dissented, saying the email evidently was sent to garner support for the trip, not to seek legal advice, and any privilege was waived when the university withheld objection to its production to the NCAA.
He said the majority "ignores the clear content of the email and assumes that all communications with someone in Tripodi's position must be made for the purpose of seeking legal advice."
The university asserted no privilege until February 2013, when Hedden requested it in discovery but until then benefited from publication in its effort to avoid sanctions, he added.
The privilege "should not be the subject of such arbitrary, selective, and opportunistic enforcement and cannot be doffed and donned like a raincoat on a cloudy day," he wrote.
Hedden's lawyer, David Corrigan of the Corrigan Law Firm in Keyport, says he's reviewing options. Under R. 2:2-5, a judgment of the Appellate Division on appeal from an interlocutory order is generally not reviewable by the Supreme Court, though the court may grant leave to appeal.
"We have a good case with or without the email, but it's certainly going to help us," he says. "My concern is, from this decision, [if] you want to do an interagency communication, cc: the lawyer…and how am I going to prove that it's not for the purpose of legal advice? The attorney-client privilege is important, but so is the need for relevant information."