DOREEN MARSHALL v. JPMORGAN CHASE BANK N.A

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1405-11T3

DOREEN MARSHALL,

Plaintiff-Appellant,

v.

JPMORGAN CHASE BANK, N.A.,

Defendant-Respondent,

and

GREGORY MEZZACAPO and

MOHAMED FOUDA,

Defendants.

________________________________________________________________

April 12, 2012

Submitted March 20, 2012 - Decided

Before Judges Baxter and Maven.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5624-09.

Montgomery, Chapin & Fetten, P.C., attorneys for appellant (John S. Fetten and Johan A. Obregon, on the briefs).

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., attorneys for respondent (Richard C. Mariani and Shira L. Krieger, on the brief).

PER CURIAM

By leave granted, plaintiff Doreen Marshall appeals from a Law Division order that required her to turn over in discovery a handwritten summary she prepared to assist her in keeping an accurate record of the hostile work environment that eventually became the subject of the present litigation alleging a violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The three or four page summary describes in some detail the claimed offensive conduct of her supervisor, defendant Gregory Mezzacapo, and the branch manager, defendant Mohamed Fouda. The summary, which plaintiff showed to her present attorney before she retained him, was not prepared at his direction or under his supervision.

The motion judge concluded that the summary was protected by the attorney-client privilege, but the judge nonetheless ordered plaintiff to provide the summary to defendant, JPMorgan Chase Bank (Chase), because "it would be fundamentally unfair for one side to have the only relatively complete summary of what happened . . . and the other side not."

Because the summary was not prepared at the request of counsel or under his supervision, we cannot agree with the judge's conclusion that the summary was protected by the attorney-client privilege. We nonetheless affirm the order under review, although for different reasons, because ultimately the judge concluded that the summary should be turned over to defendant, a result with which we concur.

I.

Plaintiff was hired by Chase in September 2006, as a loan officer in the Andover branch. Believing that defendant Fouda was subjecting her to unlawful sexual harassment and other negative treatment due to her gender, plaintiff filed a formal complaint with the human resources department of the bank in approximately September 2008, and also complained to defendant Mezzacapo about Fouda's behavior. According to plaintiff, she was ultimately forced to resign her position at Chase. Plaintiff prepared contemporaneous handwritten notes of her interactions with Fouda, Mezzacapo and the human resources department. She maintained the notes in a binder and kept the binder in a cardboard box in the bedroom of her home. The bedroom was in the basement.

On a date not specified by the record, plaintiff consulted with present counsel to discuss retaining him to file a LAD complaint on her behalf. She decided to bring with her to that initial meeting a consolidated summary of the information contained in her contemporaneous notes, rather than the notes themselves, because the consolidated summary was "simpler" to understand.

Plaintiff was deposed over the course of two days, December 29, 2010 and June 3, 2011. During the course of her deposition, plaintiff testified that the three or four pages of original handwritten notes became waterlogged due to flooding in the basement of her home; she eventually discarded them as they were covered in black mold and illegible. Plaintiff explained that she had never made a photocopy of the original notes.

Although plaintiff testified that she gave her attorney a copy of the consolidated summary during their initial meeting, counsel later clarified that plaintiff "kept the notes, as she . . . had not formally retained this firm at that time." After retaining present counsel, she provided him with a copy of the consolidated summary.

When Chase requested that plaintiff turn over a copy of the consolidated summary in discovery, she refused, asserting that the summary was protected by the attorney-client privilege. Chase moved to compel the production of the summary. At the conclusion of oral argument, the judge held that the summary was protected by the attorney-client privilege because plaintiff had provided the document to her attorney. Despite finding that the summary was privileged, the judge ordered plaintiff to turn the document over to defendant nonetheless for equitable reasons, stating:

[I]t strikes me that it would be fundamentally unfair for one side to have the only relatively complete summary of what happened in those conversations and the other side not. . . . I'm going to compel them to be produced notwithstanding the privilege.

At plaintiff's suggestion, the judge agreed to review the consolidated summary in camera to be certain that the document was discoverable. After completing the in camera review, the judge notified the parties on October 21, 2011 that with the exception of the first four lines, which "may constitute a note" from plaintiff to her lawyer, the remainder of the two-page summary was discoverable and should be turned over, for the reasons he had articulated at the motion hearing. We granted leave to appeal.

II.

Our review of the judge's order is de novo, as we owe no deference to the trial judge's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). As the Court recently observed:

[T]he attorney-client privilege . . . [is a] venerable privilege . . . enshrined in history and practice. . . . [It is] one of the oldest of the privileges for confidential communications. Its primary rationale is to encourage free and full disclosure of information from the client to the attorney. That, in turn, benefits the public, which is well served by sound legal counsel, based on full, candid and confidential exchanges.

[Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 315 (2010) (citations and internal quotation marks omitted).]

The attorney-client privilege is codified in N.J.S.A. 2A:84A-20 and N.J.R.E. 504.

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).

However, not all communications between a client and an attorney are privileged. "[D]ocuments do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer." Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 376 (App. Div. 2010) (citation and internal quotation marks omitted). In Tractenberg, the Township retained an agent to conduct property appraisals to determine whether the Township could acquire the parcels of land as part of the Green Acres Program administered by the Department of Environmental Protection. Id. at 361-62. Following the completion of the appraisals, the plaintiff requested copies of the reports, but citing attorney-client privilege and attorney work product, the Township refused to release the appraisals. Id. at 362. The appraisals were not, however, authorized or ordered by the Township attorney, although a Township employee later passed the appraisals to him. Id. at 376. We held that the appraisals were not protected by the attorney-client privilege, as there was no confidential communication between the Township Council and the Township attorney relating to the appraisals, id. at 376-77, and there was no showing that the furnishing of the appraisals to the Township attorney was accomplished in circumstances where the Township expected its attorney to keep the appraisals confidential, id. at 377. We affirmed the trial court's rejection of the Township's claim of attorney-client privilege. We agreed with the trial judge's determination that documents not otherwise protected by the attorney-client privilege "do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer." Id. at 376 (citation and internal quotation marks omitted).

That being so, we must determine whether the consolidated summary plaintiff prepared is protected by the attorney-client privilege, for if it is, the judge's order requiring its turnover must be reversed. N.J.S.A. 2A:84A-20.

Unquestionably, a summary, or chronology of events, prepared by a plaintiff at his or her attorney's request, and then turned over to the attorney, is protected by the attorney-client privilege. Hannan v. St. Joseph's Hosp. & Med. Ctr., 318 N.J. Super. 22, 27-28 (App. Div. 1999). Critical to our determination in Hannan that the chronology in question was protected from disclosure was the fact that the "plaintiff's attorney instructed plaintiff to prepare a chronology of facts relating to his medical treatment" in his medical malpractice case. Id. at 27. Plaintiff asserts that Hannan is controlling and requires reversal of the order in question. We disagree. Hannan is distinguishable from the circumstances in the present matter, as here, neither the original notes created by plaintiff nor the consolidated summary were prepared at the request of counsel. While plaintiff's counsel states in his certification in support of plaintiff's motion for leave to appeal that the consolidated notes "were prepared at the request of counsel during the pendency of the litigation," this statement is contradicted by the record. In her deposition, plaintiff testified that she prepared the consolidated notes before she met with counsel so that she would have a more organized compilation of the information contained in her original notes. The following colloquy occurred:

Q. Why didn't you show him the original notes?

A. It was just a bunch of pieces of paper of handwritten notes. I wanted it to be more consolidated and simpler.

Plaintiff also testified that the consolidated notes were the only notes she ever showed to her attorney.

Q. How about the notes that you originally made? You showed them to [your attorney], did you not?

. . . .

A. The only thing I remember is what I showed [him] is what I consolidated for him.

Moreover, according to the January 24, 2011 letter plaintiff's counsel prepared, plaintiff showed him the already-prepared summary before she retained his firm:

After conferring with [plaintiff], it was concluded that [plaintiff] must have been mistaken [when she stated in her deposition that she believed she turned those notes over to counsel during our first meeting]. While she may have at some point shown these notes to counsel, we can only conclude that [she] kept the notes, as she probably had not formally retained this firm at that time.

The record demonstrates that plaintiff created the consolidated summary simply by combining, in one document, a series of non-privileged notes that she had previously written on various scraps of paper. As she testified in her deposition, she created the consolidated summary so she would have a more organized version of her original notes to show to her prospective attorney when she first met with him. Notably, nothing in the record suggests, much less establishes, that plaintiff created the summary at the request of counsel.

Because the consolidated summary was not created at the request or direction of counsel, id. at 27-28, and was prepared by plaintiff at her own initiative, the summary was not protected by the attorney-client privilege.1

We agree with defendant that "[i]f anything, the circumstances here are more akin to those in . . . Tractenberg," in which documents not protected by the attorney-client privilege were later turned over to counsel, but that fact alone was insufficient to protect them from disclosure, as "documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer." Tractenberg, supra, 416 N.J. Super. at 377. The judge's conclusion, at the time of oral argument, that the notes were protected by the attorney-client privilege was in all likelihood the result of plaintiff's counsel's statement during oral argument that the notes were prepared at his request. As we have noted, the record demonstrates otherwise.

Although we do not adopt the judge's reasons for requiring the turnover of the consolidated summary in discovery, we agree with his ultimate conclusion that the notes are discoverable. We affirm judgments, not reasons. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968).

1 We recognize that if a person keeps notes, or creates a summary, of his or her interaction with an individual he intends to sue, and creates such document to prepare for such litigation, the document is privileged. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 551 (1997). Here, plaintiff does not rely on that ground, and, in any event, there is no record support for such a conclusion. Notably, the record sheds no light on whether, when plaintiff began preparing her notes, and later the summary, she did so, for example, for purposes of complaining to upper-level management at Chase in hopes of having Fouda or Mezzacapo fired, or whether instead, she compiled the notes to prepare for litigation. As plaintiff does not rely on this ground, we do not address it. State, Office of Emp. Relations v. Commc'ns Workers of Am., 154 N.J. 98, 108 (1998) (noting that "[o]dinarily, courts do not raise issues that the parties have not raised").