SteveK November 1st, 2013
In Hedden v. Kean University, et al., a recent published decision of the Appellate Division, the Court held that an e-mail from the University’s head women’s basketball coach to the University’s general counsel was protected from disclosure by the attorney-client privilege even though it had previously been disclosed by the coach during a National Collegiate Athletic Association (NCAA) investigation into the University’s athletic program. By way of background, Plaintiff was the University’s former athletic director and filed this lawsuit against the University alleging wrongful termination and defamation. In his capacity as athletic director, Plaintiff supervised the head women’s basketball coach at the University, who in 2010 sent an e-mail to the University’s general counsel requesting review of a draft letter she intended to distribute to raise money to send the basketball team on a trip to Spain. This trip formed the basis of an NCAA investigation, wherein the head women’s basketball coach, through her own counsel, produced this e-mail. Plaintiff requested production of this e-mail in discovery in this lawsuit and the University refused asserting the attorney-client privilege. The Court held that the e-mail was protected by the attorney-client privilege even though the coach previously disclosed it in the NCAA investigation. In the organizational context, the Court found that the corporation, namely the officers and directors of the organization, hold the authority to waive the attorney-client privilege. Thus, the head women’s basketball coach was not the holder of the privilege, and being that she did not act under the direction or with express approval of the University in disclosing the document, her disclosure did not constitute a waiver of the privilege. The Court also found that the purpose of the e-mail was to solicit legal advice and the fact that another University employee was copied on the e-mail does not forego confidentiality because the employee shared the same interest as the coach, i.e. protecting the University from liability. Judge Guadagno dissented, finding, that the e-mail was not seeking legal advice from counsel; was not made in confidence because another university employee was copied on the document; and any privilege that may have attached was waived when the University failed to object to the coach’s prior disclosure of the e-mail to the NCAA.
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