                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0494-19T3

LANE CONSTRUCTION CO.,
INC.,

          Plaintiff-Appellant,

v.

WILLIAM P. MUNDAY, ESQ.,
BRUCE S. ROSEN, ESQ.,
MCCUSKER, ANSELMI, ROSEN
AND CARVELLI, PC, and
LOWENSTEIN SANDLER, PC,

     Defendants-Respondents.
____________________________

                    Argued January 13, 2020 – Decided March 3, 2020

                    Before Judges Sabatino, Sumners and Natali.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Morris County,
                    Docket No. L-0972-17.

                    Gregg D. Trautmann argued the cause for appellant
                    (Trautmann and Associates, LLC, attorneys; Gregg D.
                    Trautmann, on the brief).
            David Morgan Blackwell argued the cause for
            respondent William P. Munday, Esq. (Donnelly Minter
            & Kelly, LLC, attorneys; David Morgan Blackwell, of
            counsel; Jared James Limbach, on the brief).

            Daniel Albert Malet argued the cause for respondents
            Bruce S. Rosen, Esq. and McCusker, Anselmi, Rosen
            & Carvelli, PC (McElroy, Deutsch, Mulvaney &
            Carpenter, LLP, attorneys; Christopher James Carey, of
            counsel and on the brief; Daniel Albert Malet, on the
            brief).

            Philip Touitou argued the cause for respondent
            Lowenstein Sandler, PC (Ackerman LLP, attorneys;
            Philip Touitou, on the brief).

PER CURIAM

      In this legal malpractice action, Lane Construction Co., Inc. (Lane)

appeals on leave granted from an August 16, 2019 Law Division order that

compelled it to produce "all documents and communications" with its

superseding counsel relating to an underlying mechanic's lien foreclosure

litigation and its settlement. The order also required the re-deposition of Lane's

principals, President Mark Lane, Vice President of Construction Robert M.

Lane, and Chairman Robert Lane. Having reviewed the record, we affirm in

part and remand in part.

      First, as explicitly provided in N.J.S.A. 2A:84A-20(2)(c), the attorney-

client privilege does not extend "to a communication relevant to an issue of


                                                                          A-0494-19T3
                                        2
breach of duty by the lawyer to his client, or by the client to his lawyer." The

communications at issue are clearly relevant to the alleged breach of such a duty

by defendants William P. Munday, Esq. (Munday), Bruce S. Rosen, Esq.

(Rosen), McCusker, Anselmi, Rosen and Carvelli, PC (MARC), and Lowenstein

Sandler, PC (Lowenstein) to plaintiff. Second, plaintiff placed the disputed

discovery directly at issue when it sued its predecessor counsel for malpractice.

Third, the documents and related discovery are clearly necessary for defendants

to defend properly against plaintiff's claims that they breached a standard of care

that proximately and fully caused plaintiff's damages.

      To ensure that only documents and information related to superseding

counsel's involvement in the underlying foreclosure action and particularly that

matter's settlement are produced, on remand plaintiff shall produce a privilege

log identifying all disputed privileged communications. The trial court should

then conduct an in-camera review of those materials and make specific rulings

consistent with the legal principles detailed in our opinion.

                                      I.

      Plaintiff, a general contractor, agreed with The Great Atlantic and Pacific

Tea Company (A&P) to perform construction and renovation work at a

supermarket in New York for a base contract price of $5,738,300.             A&P


                                                                           A-0494-19T3
                                           3
allegedly "requested and authorized additional work," resulting in change orders

and cost overruns totaling $1,117,491.27.

      After A&P refused to pay plaintiff for these additional costs, plaintiff

retained Munday, then a partner at Lowenstein. Although Munday was not

admitted to the New York bar, he prepared and filed a mechanic's lien1 in that

state encumbering the property where the work was performed reflecting

plaintiff's alleged damages of $1,117,491.27.

      After filing the lien, Munday left Lowenstein and became associated with

MARC, where he continued to represent plaintiff. According to plaintiff, Rosen,

a partner at MARC, began assisting Munday with matters relating "to the

litigation aspects of the . . . contract and the maintenance of the subject

mechanic's lien."

      On May 20, 2010, Rosen filed an extension of the mechanic's lien. Six

months later, pursuant to an arbitration clause in the contract between plaintiff

and A&P, Rosen also filed an arbitration demand with the American Arbitration


1
   Where "[a] contractor . . . performs labor or furnishes materials for the
improvement of real property" based on the consent or request of the owner, the
contractor "shall have a lien for the principal and interest, of the value, or the
agreed price, of such labor, . . . from the time of filing a notice of such lien."
N.Y. Lien Law § 3. Such a lien includes "benefits and wage supplements due
or payable for the benefit of any laborer, or materials upon the real property
improved or to be improved and upon such improvement . . . ." Ibid.
                                                                          A-0494-19T3
                                        4
Association (AAA), after initially filing, then dismissing a New Jersey state

court action against A&P. The following month, A&P filed for Chapter 11

bankruptcy.

      Five months later, Rosen filed a mechanic's lien foreclosure complaint in

New York state court against the landowners. That same day, the New York

court entered an order extending plaintiff's mechanic's lien for one year. Rosen,

however, did not extend the mechanic's lien the following year.

      After A&P's bankruptcy plan was confirmed, the New York court stayed

the foreclosure proceedings pending the outcome of the arbitration between

plaintiff and A&P. The arbitration concluded with a $308,737.98 award in

plaintiff's favor. The following year, A&P filed a second bankruptcy petition,

pursuant to which defendants failed to timely file a notice of claim. Three days

after its second bankruptcy filing, A&P intervened in the New York foreclosure

action between plaintiff and the landowners and filed a counterclaim against

plaintiff for what is known under New York law as willful exaggeration. 2


2
     New York law provides that "[i]n any action or proceeding to enforce a
mechanic's lien upon a private . . . improvement," where a court finds "that a
lienor has willfully exaggerated the amount for which he [or she] claims a lien .
. . [such] lien shall be declared to be void and no recovery shall be had thereon."
Pyramid Champlain Co. v. Brosseau & Co., 699 N.Y.S.2d 516, 520 (App. Div.
1999) (quoting N.Y. Lien Law § 39). Additionally, where such lien has been


                                                                           A-0494-19T3
                                        5
      According to Rosen's answer in the malpractice case, on April 12, 2016,

he and Munday appropriately informed plaintiff that they had made an error in

the course of their representation and plaintiff should retain separate counsel

regarding a possible malpractice claim. Specifically, Rosen informed plaintiff

that they failed to extend the notice of pendency which resulted in the expiration

of the mechanic's lien and rendered the arbitration award uncollectable. 3

      The following month, in a May 5, 2016 e-mail, Munday advised plaintiff

that its potential exposure to damages under A&P's willful exaggeration claim

was "the difference between the amount stated on the mechanic's lien and that

which the AAA panel determined was owed," totaling $808,753.30, as well as

the costs and attorney's fees incurred by the landowner and A&P. The following

week, on May 11, 2016, plaintiff advised MARC, Munday, and Rosen that it

was terminating their representation.




declared void by a court, the lienor "shall be liable in damages to the owner or
contractor." N.Y. Lien Law § 39(a). To establish willful exaggeration, the party
opposing the lien must "show that the amounts set forth were intentionally and
deliberately exaggerated." Garrison v. All Phase Structure Corp., 821 N.Y.S.2d
898, 899 (App. Div. 2006).
3
    Pursuant to New York Lien Law § 17, where a lienor fails to file a notice of
pendency to preserve its mechanic's lien, "the lien expire[s] by operation of law
. . . one year after it was filed." See In re Flintlock Realty & Constr. Corp., 591
N.Y.S.2d 439, 439 (App. Div. 1992).
                                                                           A-0494-19T3
                                        6
      On May 14, 2016, the Supreme Court of New York entered a consent order

substituting Levitt LLP (Levitt) as Lane's attorney of record in the foreclosure

action. Also, on May 25, 2016, Gregg D. Trautmann, Esq., of Trautmann &

Associates, LLC (Trautmann) indicated in an e-mail to the Supreme Court of

New York that plaintiff had retained Trautmann as its counsel in the foreclosure

matter as well. Shortly thereafter, plaintiff settled the New York litigation with

A&P by agreeing to pay $90,000 in exchange for A&P's withdrawal of the

willful exaggeration claim.

      On May 1, 2017, plaintiff filed a complaint in the Law Division against

Munday, Rosen, and MARC alleging malpractice and seeking compensatory

damages, consequential damages, and declaratory judgment.             Specifically,

plaintiff alleged that the Munday, Rosen, and MARC defendants: 1) "wrongfully

held themselves out to be knowledgeable in the field[s] of litigating construction

contract disputes . . . [and] AAA arbitration claims"; 2) misled plaintiff as to the

nature of an interlocutory appeal because they advised that the appeal

"concerned [A&P]'s efforts to avoid submitt[ing] the underlying contract action

to . . . arbitration," when the appeal in fact "concerned [A&P's] argument that

the New York mechanic's lien was filed late"; and 3) failed "to inform the

plaintiff that it faced a 'willful exaggeration' claim in the New York action."


                                                                            A-0494-19T3
                                         7
Plaintiff further alleged that those defendants breached their "duty to properly

represent . . . plaintiff" and "wrongfully held themselves out to be

knowledgeable in the field of mechanic's liens." Plaintiff later amended the

complaint to include Lowenstein as a defendant.

      In May 2019, defendants deposed Mark, Robert M., and Robert Lane. At

each deposition, plaintiff's counsel repeatedly objected to questioning regarding

plaintiff's communications with Trautmann and Levitt. By way of example, at

Mark Lane's deposition, plaintiff's counsel instructed him not to answer the

question: "Did lawyers at Levitt . . . recommend that [plaintiff] settle this

claim?" Further, plaintiff's counsel objected to a question at Robert M. Lane's

deposition asking whether he "recall[ed] that . . . Trautmann was asked to assist

in trying to settle the [underlying] case." Plaintiff's counsel also objected at

Robert Lane's deposition to a question posed by defense counsel regarding

whether he recalled having a conversation about A&P's willful exaggeration

claim "with any attorney."

      Shortly after the Lane depositions, Levitt responded to a subpoena duces

tecum propounded by Munday. In response, Levitt produced documents that

indicated Trautmann, not Levitt, negotiated the settlement with A&P. These

documents included: 1) the May 25, 2016 letter from Trautmann to the New


                                                                         A-0494-19T3
                                       8
York Supreme Court; 2) a June 2016 e-mail from Trautmann to counsel for A&P

"discussing discovery and inviting [A&P's counsel] to 'revisit' a prior discussion

regarding settlement"; 3) another June 2016 e-mail from Trautmann to Levitt

and plaintiff with regard to settlement discussions; 4) various e-mails indicating

that Trautmann had principals of plaintiff authorize the A&P settlement in

writing; 5) a series of July 2016 e-mails between Trautmann and A&P's counsel

negotiating payment of filing fees; and 6) an August 2016 check from

Trautmann to Levitt, which Munday "believed to represent a portion of the

underlying settlement funds."

      After receiving these documents, defendants filed a motion to compel

plaintiff to produce "any paper or electronic documents or communications

[between plaintiff and Trautmann or Levitt] related to the underlying litigation,"

to re-depose the Lanes, and to extend discovery. Plaintiff opposed the motion

and contended that it had provided all responsive and non-privileged discovery.

      Further, at the August 16, 2019 oral argument on the motion, plaintiff's

counsel stated that it already informed defendants that settling the underlying

litigation "was a business decision."       Plaintiff's counsel also explained that

plaintiff did not pursue the arbitration award because Rosen and Munday

informed them that they "no longer ha[d] a mechanic['s lien] claim because


                                                                           A-0494-19T3
                                        9
[Rosen and Munday] failed to extend [the lien] as required by New York law."

Plaintiff also maintained that questions relating to the identity of plaintiff's

attorneys "and when were they retained" were protected by the attorney-client

privilege.

      After hearing oral arguments, the trial court granted defendants' motion in

an oral opinion. The court, relying on In re Kozlov, 79 N.J. 232, 243-44 (1979)

and State v. Mauti, 208 N.J. 519, 538-39 (2012), concluded that the attorney-

client privilege did not preclude discovery of communications between plaintiff

and its successor counsel and accordingly ordered plaintiff, Trautmann, and

Levitt "to produce all documents and communications in their possession related

to the underlying litigation" with the landowner and A&P. It further compelled

the Lanes to re-appear for further questioning at deposition.

      The following month, plaintiff filed a motion to quash a subpoena served

by defendants on Karen L. Weiss, Esq., the New York attorney at Levitt who

represented plaintiff in the foreclosure litigation, and it also sought a stay

pending leave to appeal the court's August 16, 2019 interlocutory order. In

response, defendants filed cross-motions seeking to set certain dates for the re-

depositions of the Lanes and the deposition of Weiss, and to extend discovery.




                                                                         A-0494-19T3
                                      10
The same day, plaintiff filed an application for interlocutory review of the trial

court's August 16, 2019 order, which we granted on October 1, 2019.

      On October 10, 2019, the trial court denied plaintiff's motions and

defendants' cross-motion to extend discovery but granted defendants' cross-

motions to set dates for the re-depositions of the Lanes and the deposition of

Weiss. With regard to plaintiff's motion for a stay pending appeal, the court

concluded that plaintiff did not demonstrate that it would suffer irreparable harm

because the order compelling discovery only related to "those discovery

materials related to the negotiation process with A&P." Further, the court found

that plaintiff did not have a reasonable likelihood of success on the merits

because discovery of the materials relating to the settlement between plaintiff

and A&P "directly affects the calculation of damages against [defendants]," and

"the parties have not proffered any other method to obtain the information Weiss

may have without a deposition." Finally, the court balanced the hardships of the

parties and found that a stay pending appeal was unnecessary.

      We subsequently granted plaintiff's motion to stay the trial court

proceedings to the extent that those proceedings involved "discovery that affects

the privilege issues now pending before this court."




                                                                          A-0494-19T3
                                       11
                                       II.

        We "normally defer to a trial court's disposition of discovery matters . . .

unless the court has abused its discretion[,]" or the decision is based on "a

mistaken understanding of the applicable law." Payton v. N.J. Tpk. Auth., 148

N.J. 524, 559 (1997). Because "[a] trial court's interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference[,]" Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.

366, 378 (1995), we review the applicability of the attorney-client privilege de

novo.

        The attorney-client privilege, despite it being critically important to

ensure full and frank communications between lawyers and clients, "is neither

absolute nor sacrosanct." Hedden v. Kean Univ., 434 N.J. Super. 1, 11-12 (App.

Div. 2013) (quoting Biunno, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E.

504(3) (2013)). Indeed, "privileges stand in what [our Supreme Court] ha[s]

declared to be a 'disfavored status' because they have an effect on the truth-

seeking function." Mauti, 208 N.J. at 532 (2012) (quoting Payton, 148 N.J. at

539). Thus, testimonial privileges have been construed narrowly "because they

prevent the trier of fact from hearing relevant evidence and thereby undermine

the search for truth[,] . . . [and] sensibly accommodate privileges to the aim of a


                                                                            A-0494-19T3
                                        12
just result, and accept them to the extent they outweigh the public interest in full

disclosure." Id. at 531-32 (quoting State v. J.G., 201 N.J. 369, 383 (2010)).

      To address these competing interests, the Supreme Court detailed a three-

part test that a party seeking to pierce the attorney-client privilege must satisfy:

(1) there [must be] "a legitimate need . . . to reach the evidence sought to be

shielded"; (2) the evidence must be relevant and material to an issue in the case;

and (3) there must be a finding, by a fair preponderance of the evidence, that the

information sought cannot be obtained from a less intrusive source. Kozlov, 79

N.J. at 242-43.

      In Mauti, the Supreme Court made clear, however, that the third prong of

the Kozlov test must be construed narrowly:

            Kozlov did not propound a broad equitable balancing
            test pursuant to which any privilege is subject to
            piercing if the adversary 'needs' relevant evidence that
            cannot be obtained from another source. Such an
            approach would eviscerate the privileges and trench on
            the legislative judgments informing them. To the
            contrary, in Kozlov, . . . we recognized that only in the
            most narrow of circumstances, such as where a
            privilege is in conflict with a defendant's right to a
            constitutionally guaranteed fair trial, would the need
            prong of its test be satisfied.

            [Mauti, 208 N.J. at 537-38 (emphasis added).]




                                                                            A-0494-19T3
                                        13
      The Mauti Court added that in the context of a statutory privilege, "the

privilege could not be overborne, except where specifically so provided by the

Legislature or where the need arose out of a constitutionally based command . .

. ." Id. at 538. In this regard, the attorney-client privilege does not extend "to a

communication relevant to an issue of breach of duty by the lawyer to his client,

or by the client to his lawyer." N.J.R.E. 504(2) (quoting N.J.S.A. 2A:84A-

20(2)).

      Further, "a privilege may be waived 'implicitly' where a party puts a

confidential communication 'in issue' in a litigation." Mauti, 208 N.J. at 532

(quoting Kinsella v. Kinsella, 150 N.J. 276, 300 (1997)). 4 In the context of

attorney malpractice actions, it is well-settled that a client waives the protections

of the attorney-client privilege when he sues his attorney. Connell, Foley &

Geiser, LLP v. Israel Travel Advisory Servs., Inc., 377 N.J. Super. 350, 361-62

(App. Div. 2005); State v. Garron, 177 N.J. 147, 175 (2003).



4
   The privilege can also be waived if the defendant "contracted" to do so, or
"made disclosure of any part of the privileged matter or consented to such a
disclosure made by anyone." N.J.R.E. 530 (quoting N.J.S.A. 2A:84A-29). As
noted, Levitt produced certain communications in response to Munday's
subpoena. No party has argued that Levitt's production constituted a partial or
complete waiver of the attorney-client privilege and we, accordingly, do not
address such a waiver claim.


                                                                             A-0494-19T3
                                        14
      "In essence, in [such a] circumstance[], the party who places a confidential

communication in issue voluntarily creates the 'need' for disclosure of those

confidences to the adversary." Mauti, 208 N.J. at 532. 5 The Kozlov and the

Kinsella "at issue" line of cases establish the narrow circumstances, apart from

the express exceptions in N.J.S.A. 2A:84A-20, under which the "need" prong

can be satisfied: 1) a party has explicitly or implicitly waived the privilege or

2) where a constitutional right is at stake.

      With these legal principles as our guidepost, we affirm (with certain

modifications) the court's August 16, 2019 order on three independent grounds.

First, pursuant to N.J.S.A. 2A:84A-20(2), the attorney-client privilege does not

apply to communications "relevant to an issue of breach of duty by the lawyer

to his client, or by the client to his lawyer." See Mauti, 208 N.J. at 538 (noting




5
   The Mauti Court cited a number of cases, including United Jersey Bank v.
Wolosoff, 196 N.J. Super. 553, 564-65 (App. Div. 1984), as examples of an
implicit waiver of the attorney-client privilege. Mauti, 208 N.J. at 532. In
Wolosoff, the plaintiff sought to rescind a settlement agreement asserting that
defendant made material misrepresentations in the course of the settlement
discussions and sought communications between plaintiff and counsel to
challenge its claim that plaintiff relied on defendant's alleged
misrepresentations. 196 N.J. Super. at 559-60. We ordered disclosure of the
privileged communication to prevent plaintiff from inequitably "divulg[ing]
whatever information is favorable to its position and assert the privilege to
preclude disclosure of . . . detrimental facts." Id. at 567.
                                                                          A-0494-19T3
                                        15
that the attorney-client privilege cannot be "overborne, except where

specifically so provided by the Legislature").

      Second, by suing Munday, Rosen, MARC, and Lowenstein claiming they

committed legal malpractice, plaintiff implicitly waived the attorney-client

privilege by placing at issue in the malpractice action the legal advice

Trautmann and Levitt as superseding counsel provided to them, as that advice is

directly relevant to the cause of plaintiff's alleged damages (i.e., whether certain

of plaintiff's claimed damages were proximately caused by the actions of

defendants or the alleged negligent settlement of the underlying action by

Trautmann and Levitt), and their request that defendants reimburse them for the

$90,000 settlement paid to A&P. 6 See, e.g., Connell, Foley & Geiser, 377 N.J.

Super. at 361-62.

      In this regard, defendants contend in their respective answers and in

discovery responses that the cause of plaintiff's damages was not any negligent

act that they may have committed, but rather the separate, intervening



6
   We acknowledge that the court did not expressly rely on N.J.S.A. 2A:84A -
20(2) or the at-issue doctrine when piercing the attorney-client privilege.
Appeals, however, are taken only from written judgments or orders, Konczyk v.
Konczyk, 367 N.J. Super. 512, 514 n.1 (App. Div. 2004), and we may affirm a
trial court's order for reasons different from those expressed by the trial court.
State v. Armour, 446 N.J. Super. 295, 310 (App. Div. 2016).
                                                                            A-0494-19T3
                                        16
negligence of Trautmann and Levitt.         Specifically, defendants assert that

Trautmann's and Levitt's effective abandonment of the $308,000 arbitration

award related to the mechanic's lien and concomitant $90,000 payment was

negligent because, contrary to their claims, the arbitration award had value and

defendants did not "willfully exaggerate" the claim under New York law.

According to defendants, a "factfinder . . . may well determine that plaintiff

would have prevailed in the underlying litigation it if had not settled, thereby

extinguishing plaintiff's current malpractice claims and inculpating successor

counsel." Defendants also argue that to the extent plaintiff asserts that Rosen's,

Munday's, and MARC's actions in failing to file a timely notice of pendency

vitiated the arbitration award, those actions also extinguished the willful

exaggeration claim, rendering the advice and decision to pay A&P $90,000

discoverable.

      While we do not pass on the merits of these assertions, we see no

principled reason under the facts here to except communications between

successor counsel and a client, particularly when those communications may

relate directly to the cause and quantum of the alleged damages. 7 See Connell,


7
  Plaintiff describes defendants' arguments as "sophistry" unsupported by any
expert testimony. We disagree that an expert report was required prior to the


                                                                          A-0494-19T3
                                       17
Foley & Geiser, 377 N.J. Super. at 361-62 ("While there might be instances in

the predecessor-successor suits where implied waiver would be unfair to the

client, we cannot envision any circumstance where that would be so when the

client retains two attorneys to handle the same litigation . . . .").

      Third, we agree with the court that production of communications between

Trautmann, Levitt, and plaintiff was warranted upon application of the Kozlov

tripartite test, as modified by the Mauti Court. In this regard, refusing to pierce

the attorney-client privilege in this case would severely handicap defendants'

constitutional right to a fair trial. See Mauti, 208 N.J. at 537-38. Without being

able to inquire at deposition and review documents relating to the reasons why

Trautmann and Levitt decided to resolve the underlying litigation, defendants

would be severely and impermissibly curtailed in establishing its claim that

plaintiff entered into a detrimental settlement agreement due to the alleged

negligence of its successor counsel.

      As defendants correctly maintain, because the limited discovery record

supports the conclusion that Trautmann and Levitt each "played an integral role




court compelling the clearly relevant and necessary discovery. We expressly do
not address whether an expert opinion or testimony is required to establish any
of the parties' substantive claims or defenses. Such a determination should be
made by the trial court in the first instance.
                                                                           A-0494-19T3
                                        18
in negotiating the settlement . . . and advising [p]laintiff to pay $90,000 to A&P

despite receiving a favorable $308,737.98 AAA [a]rbitration award,"

information relating to counsels' advice is vital to defendants' position that they

did not commit legal malpractice or, alternatively, that Trautmann and Levitt

were partially liable for plaintiff's alleged damages.

      Further, as plaintiff seeks to recover as damages the $90,000 settlement,

defendants have a legitimate need to access communications between plaintiff,

Trautmann, and Levitt to determine the validity of such a claim for

reimbursement. As the trial court correctly reasoned, in order for "this litigation

[to be] fairly tried with all available information, [defendants] have a

[constitutional] right to explore" communications between plaintiff, Trautmann,

and Levitt regarding the underlying settlement. Indeed, as Munday notes on

appeal, plaintiff "simultaneously claim[s] the underlying settlement as damages

and [attempts to] block defendants' every attempt to obtain information

regarding the circumstances surrounding [it]."

      As to the second Kozlov prong, as stated in Dontzin v. Myer, 301 N.J.

Super. 501, 508-09 (App. Div. 1997), "it would be a rare confidential

communication that would not satisfy the relevancy test." Kozlov therefore

requires defendants to establish both that the information is both relevant and


                                                                           A-0494-19T3
                                       19
material, a requirement easily met here. As noted, the communications are

directly relevant and material to the issue of which of plaintiff's claimed

damages were proximately caused by defendants' alleged breach.8

      With respect to the third Kozlov prong, we find no support in the record

that discovery related to the reasons plaintiff settled the underlying litigation is

available from any other less intrusive source. See Kozlov, 79 N.J. at 243-44

(quoting In re Farber, 78 N.J. 259, 276-77 (1978)). As the court observed, such

information "can't come from anybody except the client or the attorney." From

our review of the excerpts of the Lanes' depositions provided in the record, we

have no reason to disagree with the court's finding.

      Indeed, those excerpts contain limited substantive testimony. In its merits

brief before us, plaintiff states that its decision to settle was a "business

decision[] based upon the status of the underlying litigation, the malpractice

errors admittedly committed by the defense attorneys[,] and the exposure to the

plaintiff on the willful exaggeration claim." Defendants should not be forced to

accept such assertions without an ability to challenge those claims or explore


8
  While we recognize that neither MARC nor Munday has filed a third-party
action against Trautmann or Levitt, counsel represented that such a claim is
being considered, pending receipt of the disputed discovery. Independent of any
such putative action, as noted, the discovery is relevant as it directly addresses
the proximate cause and damages issues.
                                                                            A-0494-19T3
                                        20
the bases for that "business decision." See Wolosoff, 196 N.J. Super. at 567

(stating that a plaintiff should not be permitted to "divulge whatever information

is favorable to its position and assert the privilege to preclude disclosure of . . .

detrimental facts").

                                       III.

      Finally, plaintiff contends the court committed error when it ordered the

Lanes re-deposed. Specifically, plaintiff argues that defendants "have deposed

the plaintiff's principals and were permitted to make full inquiry as to the reasons

as to why the underlying matter was settled." We disagree.

      Rule 4:10-1 sets forth the permissible modes of discovery in a civil suit,

including oral deposition testimony, and further provides that "[u]nless the court

orders otherwise under [Rule] 4:10-3, the frequency of use of these methods is

not limited." Rule 4:10-3 in turn provides that "[o]n motion by a party . . . from

whom discovery is sought, the court, for good cause shown . . . may make any

order that justice requires to protect a party . . . from annoyance, embarrassment,

oppression, or undue burden or expense."

      Here, the court properly allowed the Lanes to be deposed for a second

time regarding the underlying litigation. As noted, at the initial depositions of

the Lanes, plaintiff's counsel objected to various lines of questioning, effectively


                                                                             A-0494-19T3
                                        21
thwarting any substantive discussion of the reasons for the settlement of the

underlying litigation. By way of example only, plaintiff's counsel precluded

defendants' counsel from inquiring into the following areas: 1) "Did lawyers at

Levitt, LLP recommend that [plaintiff] settle this claim?"; 2) "Prior to the

settlement, had [plaintiff] already retained Mr. Trautmann?"; and 3) "Do you

recall that Mr. Trautmann was asked to assist in trying to settle the [underlying]

case?" Had these lines of inquiry been allowed to go forward, defendants would

likely have been able to discover evidence relevant to their defenses against

plaintiff's legal malpractice claim.

      Moreover, plaintiff does not argue that the Lanes, by submitting to a

second deposition limited to the underlying litigation, would suffer "annoyance,

embarrassment, oppression, or undue burden or expense." R. 4:10-3. Absent

good cause preventing a second deposition, which we assume can be completed

expeditiously in light of the court's order limiting the scope of the depositions

to the underlying litigation and related settlement, the court properly permitted

the Lanes to be re-deposed.9


9
  We note that in its August 16, 2019 oral decision, the court stated that it was
"not suggesting [defendants] can depose the attorneys at all . . . ." In the court's
October 10, 2019 order, however, it denied plaintiff's motion to quash a
subpoena for the deposition of Weiss. On remand, we leave it to the trial court


                                                                            A-0494-19T3
                                        22
                                       IV.

      Our directions on remand are limited to ensuring that plaintiff produce

only those relevant attorney-client communications that relate to Trautmann's

and Levitt's limited involvement in the later stages of the underlying litigation

and settlement. In this regard, it is clear from the trial court's reference to the

"underlying litigation" in its August 16, 2019 order and more specific reference

to the "negotiation process with A&P" in its statement of reasons accompanying

its October 10, 2019 order, that the relevant attorney-client communications at

issue relate to that discrete time period and event. We do not understand those

materials to be extensive. Prior to any production, the court shall conduct a

careful in camera inspection of the aforementioned documents to ensure that no

other privileged communications are disclosed. See Payton, 148 N.J. at 550.

With these safeguards in place, we discern no adverse public policy

consequences, or any "chilling effect" on the willingness of attorneys to serve

as successor counsel, will ensue.




to determine in its discretion whether further depositions of plaintiff's other
successor counsel are appropriate.
                                                                           A-0494-19T3
                                       23
      To the extent we have not addressed any of plaintiff's arguments it is

because we concluded they lacked sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed as modified.




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                                       24
