SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1175-23

 A-1176-23 

DR. CHRISTINE LENTZ, 

and LYNN PETROZZA, 

 Plaintiffs-Respondents, 

v.

DR. KATHLEEN TAYLOR, 

individually and as Superintendent

of Ocean City Public School 

District, OCEAN CITY BOARD 

OF EDUCATION, as the 

Governing Body for the Ocean 

City School District, and 

DFDR CONSULTING, LLC, 

 Defendants, 

and 

COMEGNO LAW GROUP, PC, 

JEFFREY R. CACCESE, 

MARK G. TOSCANO, 

 Defendants-Appellants. 

____________________________

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1175-23

DR. CHRISTINE LENTZ, 

and LYNN PETROZZA, 

 Plaintiffs-Respondents, 

v.

DR. KATHLEEN TAYLOR, 

individually and as Superintendent

of Ocean City Public School 

District, OCEAN CITY BOARD 

OF EDUCATION, as the 

Governing Body for the Ocean 

City School District, 

 Defendants-Appellants, 

and 

COMEGNO LAW GROUP, PC, 

JEFFREY R. CACCESE, 

MARK G. TOSCANO, 

DFDR CONSULTING, LLC, 

 Defendants. 

____________________________

Argued April 23, 2024 – Decided May 7, 2024 

Before Judges Haas and Natali. 

On appeal from interlocutory orders of the Superior

Court of New Jersey, Law Division, Cape May County,

Docket No. L-0112-19. 

Kyle L. Wu argued the cause for appellants Comegno 

Law Group, PC, Jeffrey R. Caccese, and Mark G. 
3 A-1175-23

Toscano (Margolis Edelstein, attorneys; Paul A. 

Carbon and Kyle L. Wu, of counsel and on the briefs). 

Gina M. Roswell argued the cause for appellants Dr.

Kathleen Taylor and Ocean City Board of Education 

(Brown & Connery, LLP, attorneys; Gina M. Roswell 

and Alyssa I. Lott, on the briefs). 

Marc Weinberg argued the cause for respondents 

(Saffren & Weinberg, and Hornstine & Vanderslice, 

LLC, attorneys; Marc Weinberg and Buneka J. Islam, 

on the briefs). 

PER CURIAM 

These back-to-back appeals, argued together and consolidated for 

purposes of this opinion, have their genesis in a criminal prosecution in which 

plaintiff Dr. Christine Lentz1 was acquitted of second-degree official 

misconduct, third-degree theft, and third-degree computer-related theft, and the 

resulting civil action alleging, inter alia, discrimination and malicious 

prosecution. That later action gave rise to the two orders under review. 

Specifically, defendants Dr. Kathleen Taylor and the Ocean City Board of 

Education (OCBOE) (collectively, BOE defendants), and their counsel, 

defendants Comegno Law Group, P.C., Jeffrey R. Caccese, Esq., and Mark G. 

1

 For ease of reading, we refer to Drs. Lentz and Taylor by their surnames, 

intending no disrespect to their professional titles by doing so. For similar 

reasons, we refer to plaintiff in the singular, but acknowledge Lynn Petrozza, 

Lentz's domestic partner, also has asserted a per quod claim. 
4 A-1175-23

Toscano, Esq. (collectively, the Comegno defendants) challenge a May 11, 2023 

order which granted plaintiff's motion to pierce the attorney-client privilege and 

compel the production of communications between the BOE defendants and 

Comegno defendants. They also challenge a November 2, 2023 order in which 

the court granted, in part, their application for reconsideration. 

For the reasons that follow, we reverse, vacate both orders, and remand 

for proceedings consistent with this opinion. In sum, we agree with defendants 

the court erred in concluding plaintiff's Sixth Amendment rights were at stake 

in this civil action to support piercing the attorney-client privilege under State 

v. Mauti, 208 N.J. 519 (2012). We also address and provide guidance to the 

court with respect to the appropriate procedure to be applied on remand with 

respect to any further review of privileged documents. 

 I.

 In late 2014 and early 2015, plaintiff, then employed by the Ocean City 

School District as vice principal and athletic director, served as the chair for the 

committee negotiating the collective bargaining agreement (CBA) on behalf of 

the Ocean City Administrators' Association (OCAA). At that time, defendant 

Taylor was the superintendent for the District, representing the OCBOE in the 

negotiations, and the Comegno defendants were counsel to the OCBOE. 
5 A-1175-23

 In May 2015, the Comegno defendants and Taylor began to suspect that 

someone on the OCAA negotiation committee had accessed Taylor's email, 

because the committee was privy to information which had allegedly been 

shared only in emails between Taylor and the Comegno defendants. Plaintiff 

alleges the information had been previously shared with the committee "as early 

as [f]all 2014." The Comegno defendants hired defendant DFDR Consulting, 

LLC (DFDR), a computer consulting company, to investigate the issue. 

 Taylor, the Comegno defendants, and DFDR reached the conclusion 

Taylor's email was accessed by an iPad, which was not password-protected, and 

which Taylor had lost in approximately October 2014. According to plaintiff, 

Taylor also lost a second iPad in April 2015. 

The investigation also revealed, according to DFDR, Taylor's iPad was 

connected to Lentz's computer on January 5, 2015, and Taylor's emails were 

accessed around that same time. Additionally, DFDR determined other Ocean 

City School District staff had improperly accessed files and folders without 

authorization. 

 The following month, plaintiff maintains Taylor and defendant Toscano 

"pressured [her] to resign her position as [a]thletic [d]irector and remain solely 
6 A-1175-23

as [v]ice [p]rincipal" to "distract [her] focus as [c]hair of the [c]ommittee and 

undermine Lentz's position at the school." She refused. 

 Plaintiff alleges that in June 2015, defendant Caccese "initiated an 

investigation with the [p]rosecutor with the intent to harm Lentz and remove her 

from her position." According to plaintiff, Caccese informed the prosecutor that 

the Comegno defendants were investigating allegations that Taylor's school 

email was "unlawfully accessed without Taylor's knowledge or consent." 

 Subsequently, on approximately June 24, 2015, plaintiff received a letter 

informing her "that she was charged with the unauthorized access of Taylor's 

email on June 15, 2015 and was therefore suspended."

2

 Plaintiff, Toscano, and 

Caccese met on June 26, 2015, and at that meeting, plaintiff avers Toscano and 

Caccese "threatened that, unless Lentz retired, effective August 1, 2015, they 

would initiate a tenure charges action" and seek to revoke her tenure. Plaintiff 

accordingly agreed to retire which, according to the complaint, she was led to 

believe "would resolve all of the issues [related to] her employment." 

In July 2015, the BOE defendants allegedly informed plaintiff "the August 

1, 2015 retirement date proposed by Caccese and Toscano was no longer an 

option" and she would need to tender her retirement request immediately. 

2

 The record before us does not identify the author of the June 2015 letter. 
7 A-1175-23

Plaintiff's subsequent attempt to rescind her retirement request was "denied by 

way of non-response." 

 The Cape May County Prosecutor began investigating plaintiff in late 

June 2015. According to plaintiff, "Toscano and DFDR forwarded information 

[to the prosecutor] that implicated only Lentz in wrongdoing but failed to 

provide information about other employees who were known to have unlawfully 

accessed the computers of Taylor and other school personnel." The information 

forwarded to the prosecutor included an email from Microsoft providing IP 

addresses from which Taylor's school email account had been accessed. 

Significantly, plaintiff alleges Toscano or "someone from DFDR" deleted 

a portion of that email which indicated the IP addresses were "of limited value 

when determining the source of access or administrative changes" and Microsoft 

could not "guarantee the addresses logged are of the actual customer IP address." 

Defendants vehemently dispute purposefully deleting any portion of the email. 

Plaintiff further posits defendants failed to inform the prosecutor that Taylor had 

lost a second iPad. 

In August 2015, plaintiff was indicted and charged with the second and 

third-degree charges previously noted. The matter proceeded to a jury trial 

where she was acquitted of all charges. 
8 A-1175-23

 In June 2017, plaintiff sued all defendants in the United States District 

Court for the District of New Jersey, and asserted claims for: violating her 

Fourteenth Amendment due process right under 42 U.S.C. § 1983; malicious 

prosecution in violation of the Fourth Amendment under § 1983; common law 

malicious prosecution; unlawful discrimination in violation of the New Jersey 

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50; conspiracy; breach 

of contract; tortious interference with contract; intentional infliction of 

emotional distress, and loss of consortium. The District Court granted 

defendants' motion to dismiss each of the federal claims. See Lentz v. Taylor, 

No. 17-04515, 2019 U.S. Dist. LEXIS 37542 (D.N.J. Mar. 8, 2019). As relevant 

here, the court concluded plaintiff failed to establish any Fourth Amendment 

violation or Fourteenth Amendment due process violation related to the criminal 

trial. It then declined to exercise jurisdiction over the remaining state law 

claims. The Third Circuit affirmed. See Lentz v. Taylor, No. 19-1756, 2021 

U.S. App. LEXIS 32868 (3d Cir. Nov. 4, 2021). 

 Plaintiff subsequently filed the instant action in the Law Division in which 

she alleged (1) all defendants unlawfully discriminated against her based upon 

her sexual orientation in violation of the LAD; (2) the OCBOE breached the 

CBA by "unlawfully constructively terminating" her employment; (3) Taylor 
9 A-1175-23

and the Comegno defendants tortiously interfered with the CBA; (4) all 

defendants intentionally inflicted emotional distress upon her; and (5) all 

defendants maliciously initiated her criminal prosecution. As noted, plaintiff 

Petrozza also brought a per quod claim. 

 Plaintiff sought discovery of documents defendants claimed to be 

privileged and accordingly, she moved to pierce the attorney-client privilege. 

After considering the parties' submissions and oral arguments, the court granted 

in part plaintiff's motion in a May 11, 2023 order, explaining its reasoning in a 

May 5, 2023 oral ruling. Applying a probable cause standard, the court 

concluded plaintiff satisfied all three prongs of Kozlov.3 Specifically, with 

respect to whether plaintiff established a legitimate need for the evidence, the 

court considered the Mauti4 decision, and found it "impossible to look at this

3

 Absent a waiver or a party placing privileged communications at issue, to 

pierce the attorney-client privilege, a party must establish (1) "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. In re Kozlov, 79 N.J. 232 (1979). 

4

 As relevant to the issue before us, the Mauti court stressed the first "need" 

prong of Kozlov is satisfied only "(1) where a constitutional right is at stake, or 

(2) a party has explicitly or implicitly waived the privilege." 208 N.J. at 538-

39. The court further explained a legitimate need exists "only in the most narrow 
10 A-1175-23

tort matter without the criminal overtones to it" or "to read this complaint 

without seeing that there are constitutional overtones to it." The court reasoned 

the allegations of "conspiracy and prosecution" raised "clearly constitutional 

issues" and this case "is the only forum in which the plaintiff can seek recourse 

for that constitutional violation." 

 As to the relevant and material prong, the court explained "evidence of 

communications between and/or among" the defendants was "obviously relevant 

and material to the allegations of the plaintiffs' complaint" involving a 

conspiracy to initiate the prosecution of plaintiff. The court also concluded there 

were no less intrusive means to obtain the information, as depositions would be 

"an effort in futility" because "[a]ny counsel is going to object on the basis of 

attorney-client privilege." 

 Finally, with respect to an in camera review, the court ordered "a two[-] 

step process": "[f]irst, [the court directed] counsel [to] confer and decide what 

is really, really privileged and relevant and then provide [the court] with the 

privilege log as to the items that you cannot agree upon and [it will] make a 

determination as to whether they need to be provided." It clarified that "there 

of circumstances, such as where a privilege is in conflict with a defendant's right 

to a constitutionally guaranteed fair trial." Id. at 538. 
11 A-1175-23

can be documents [defendants] choose not to show" to plaintiff and instead only 

provide to the court for in camera review. To the extent additional discoverable 

and privileged documents were located, the court stated it "would expect that 

[counsel] would use [its] ruling and apply it in a common[]sense way with regard 

to those additional documents." 

In its written order, the court specified it denied plaintiff's motion "only 

to the extent that it might have sought unfettered access to all documents 

between and among defendants." It further ordered the parties to "meet and 

allow review of the privileged documents" within forty-five days, but noted 

"defendants can still withhold documents they claim are privileged" which were 

to be provided to the court for its in camera review "within [forty-five] and 

[sixty] days." 

 Defendants moved for reconsideration, arguing the court improperly 

relied upon disputed factual allegations, and inappropriately applied a probable 

cause standard when conducting its Kozlov analysis. Further, they contended 

there was no constitutional right at stake consistent with Mauti and requested 

the court stay its May 11, 2023 order. 

After considering the parties' submissions and oral arguments, the court 

granted partial reconsideration in a November 2, 2023 written order, and 
12 A-1175-23

explained its decision in a written statement of reasons. First, the court 

acknowledged its application of the probable cause standard was incorrect, and 

"the standard should have been whether [plaintiff] had satisfied the court 'by a 

fair preponderance of the evidence including all reasonable inferences.'" Even 

under that standard, however, the court concluded plaintiff had met her burden 

under Kozlov. 

With respect to the legitimate need prong under Mauti, the court found 

plaintiff's constitutional right to a fair trial under the Sixth Amendment was at 

stake, expressly concluding her malicious prosecution claim was "the civil 

equivalent of a constitutional right to a fair trial" and the criminal matter and 

constitutional issues were inseparable from the civil claims. It rejected 

defendants' contention that plaintiff's acquittal established no constitutional 

right was at issue and indeed found her "freedom and liberty were at stake in the 

criminal trial," which are "clearly constitutional issues." 5

5

 Before the court, plaintiff also argued her civil claims affected her rights under 

the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Before us, 

however, plaintiff limits her argument that she satisfied Mauti and the first prong 

of Kozlov by relying exclusively on the Sixth Amendment. And, as discussed 

infra, the court's decision expressly limited its legitimate need finding to the 

Sixth Amendment as well. We accordingly limit our discussion and analysis of

whether plaintiff has established a legitimate need under the first prong of 

Kozlov in a similar fashion. See Green Knight Capital, LLC v. Calderon, 469 
13 A-1175-23

The court also determined (1) "a trial cannot be a fair trial if there should 

never have been a trial at all," (2) "if after an acquittal it is determined that there 

was fraud involved in the trial, the acquitted defendant is entitled to know what 

occurred," and (3) "an acquitted defendant is entitled to recourse against the 

fraudulent accusers" which "only occurs in civil court." Additionally, it 

explained a contrary conclusion would "never [allow for] recourse for a falsely 

charged litigant, as they could never obtain necessary information through 

discovery to pursue their claims against their perpetrators if the information is 

protected by a privilege." 

The court next reiterated its previous finding that the privileged evidence 

was relevant and material to plaintiff's claims. Its findings were based on 

defendants' privilege logs as it "ha[d] not seen the evidence." The court also 

noted its in camera review would reveal if any of the information was "not 

relevant and material." The court also again found plaintiff established there 

was no less intrusive source available, noting "[n]one of the [d]efendants have 

offered a less intrusive source for the information Lentz seeks" and taking 

N.J. Super. 390, 396 (App. Div. 2021) (holding "[a]n issue not briefed on appeal 

is deemed waived" (quoting Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 

310, 319 (App. Div. 2017))). 
14 A-1175-23

depositions "would be an exercise in futility" as "there is no reason to suspect 

that [counsel] would not assert the privilege in a deposition." 

As to the work product privilege, the court explained it would conduct an 

in camera review of the documents to determine if they "are in fact work 

product." If not, it would order the documents produced unless subject to 

another privilege, but if they were, the court would again engage in a Kozlov 

analysis. In conclusion, the court found "the public interest in knowing the truth 

is substantial" and the public's and plaintiff's right "to know if there was any 

fabrication of evidence" outweighed defendants' assertion of privilege. It added 

"this balance is further protected by an in camera review." 

The court vacated the portion of its May 11, 2023 order requiring the 

parties to meet and review the documents, and instead ordered defendants to 

"produce any and all documents listed in any privilege logs as subject to the 

attorney-client privilege and the work product privilege to the court for in 

camera review" within forty-five days. It also stayed its order "conditioned on 

[d]efendants timely filing an [i]nterlocutory [a]ppeal with the Appellate 

Division." Defendants moved for leave to appeal, which we granted on an 

accelerated basis. 
15 A-1175-23

 II. 

 Before us, the BOE defendants argue the court erred in granting plaintiff's 

motion to pierce the attorney-client privilege because she failed to show a 

legitimate need for the evidence. Specifically, they contend this civil matter 

implicates no constitutional right, and plaintiff concedes there has been no 

waiver. The BOE defendants maintain "the protections afforded by the Sixth 

Amendment are limited to criminal prosecutions only" and highlight that neither 

the court nor plaintiff pointed to any authority to the contrary. In support, they 

note the plain text of both the Sixth Amendment and Article I, Paragraph 10 of 

the New Jersey Constitution limits the rights set forth therein to "criminal 

prosecutions," and "well-established case law" demonstrates the Sixth 

Amendment does not apply to civil actions, including Turner v. Rogers, 564 

U.S. 431, 441 (2011); N.J. Div. of Child Prot. & Permanency v. R.L.M., 450 

N.J. Super. 131, 143 (App. Div. 2017); and N.J. Div. of Child Prot. & 

Permanency v. N.T., 445 N.J. Super. 478, 492 (App. Div. 2016). They stress 

"[t]he question is whether there is a 'constitutional right at stake' to satisfy the 

'legitimate need' requirement." 

 The BOE defendants also argue the court erred in its conclusion that 

plaintiff's malicious prosecution claim "is the civil equivalent of a constitutional 
16 A-1175-23

right to fair trial." Relying on DiBella v. Borough of Beachwood, 407 F.3d 599, 

601 (3d Cir. 2005), they distinguish a common law malicious prosecution, as 

pled here, from a constitutional malicious prosecution claim, which requires an 

additional element of "a deprivation of liberty consistent with the concept of 

seizure as a consequence of a legal proceeding." They also highlight plaintiff's 

acquittal and her unsuccessful constitutional claims in the federal action, 

including two separate malicious prosecution claims. 

 The BOE defendants next argue, even if the court's analysis were sound, 

it erred by reviewing only the privilege logs rather than conducting a complete 

in camera review of the privileged documents prior to granting plaintiff's 

motion. They contend the court did not "issue any 'specific determinations 

regarding [p]laintiffs' access to [the documents], including an expression of 

reasons for the court's rulings,'" contrary to Seacoast Builders Corp. v. Rutgers, 

358 N.J. Super. 524, 542 (App. Div. 2003). Additionally, the BOE defendants 

maintain the court could not have properly determined the documents were 

relevant and material to plaintiff's claims, as required by Kozlov, 79 N.J. at 243, 

without first reviewing the documents. 

The Comegno defendants largely echo the BOE defendants' arguments, 

adding the only application the Sixth Amendment has to civil proceedings 
17 A-1175-23

pertains to the appointment of counsel when a party may lose their liberty as a 

result of the proceeding, such as in State v. Ashford, 374 N.J. Super. 332, 337 

(App. Div. 2004), in which an indigent defendant had a right to counsel for 

contempt of a domestic violence order. Because plaintiff is not at risk of losing 

her liberty, the Comegno defendants contend the Sixth Amendment has no 

application to this matter. They also argue "none of the elements of a malicious 

prosecution claim bear upon what constitutes a 'fair trial' within the meaning of 

the Sixth Amendment," and the court's conflation of the two is unsupported by 

New Jersey or federal law. 

 In requesting we affirm, plaintiff contends the court correctly found a 

Sixth Amendment interest implicated here, as she was "not informed of the 

nature and cause of the accusations that were made against her." She argues her 

"acquittal does not automatically mean that her Constitutional rights are no 

longer pertinent." Plaintiff distinguishes the cases relied upon by the BOE 

defendants, noting each "discuss[ed] how a party does not have Sixth 

Amendment rights during civil proceedings" but "that idea is not presented in 

this case." Rather, plaintiff contends "[t]he issue before the [c]ourt is whether 

[p]laintiffs presented a Sixth Amendment issue to satisfy the 'legitimate need' 

requirement under Kozlov and Mauti." In support of her position that she
18 A-1175-23

satisfied that requirement, plaintiff highlights the inseparable nature of the 

criminal action and these claims, her inability to pursue their claims in any other 

forum, and "the injustices [she] has faced." 

 Plaintiff also argues there is no distinction between common law 

malicious prosecution and constitutional malicious prosecution, noting the court 

"found it ludicrous that [p]laintiffs needed to raise two separate malicious 

prosecution claims." She notes unlike her claims, DiBella involved a federal 

cause of action for malicious prosecution pursuant to 42 U.S.C. § 1983. 

 Plaintiff relies on Merkle v. Upper Dublin School District, 211 F.3d 782 

(3d Cir. 2000), a case involving a teacher's constitutional and malicious 

prosecution claims against a school district and superintendent. She argues her 

malicious prosecution claim implicated a constitutional right, as in that case, 

where the court found the teacher's exercise of their right to freedom of speech 

was "inherent" to their malicious prosecution claim and the school district's 

probable cause to initiate prosecution. 

 Plaintiff also contends the court "made it clear that it would review all 

documents in camera" and if it "found that they were not relevant and material, 

then the [j]udge would not supply them to [p]laintiffs." She also maintains the 

court properly reviewed the description of the documents provided by 
19 A-1175-23

defendants in their privilege log to determine their relevance and materiality, 

and these communications "between and among the defendants" alleged to have 

conspired against plaintiff satisfied the requirement. Plaintiff notes she does not 

object to any in camera review, but "only want[s] to ensure that [she] ha[s] 

access to discovery." Further, she argues an in camera review conducted after 

the court's ruling is permissible under Payton v. N.J. Tpk. Auth., 148 N.J. 524, 

535 (1997), and would not be prejudicial to defendants. 

 Plaintiff also maintains the court properly conducted a full factual analysis 

for each prong, which are interrelated. She highlights the court's rejection of 

some of her allegations, and the deference typically afforded the court's factual 

findings. Plaintiff argues the factual issues will ultimately need to be presented 

to a trier of fact, but the court "needed to make factual determinations with the 

information that was provided." 

III. 

"New Jersey's discovery rules are to be construed liberally in favor of 

broad pretrial discovery." Payton, 148 N.J. at 535 (citing Jenkins v. Rainner, 69 

N.J. 50, 56 (1976)). "While we normally defer to a trial court's disposition . . . 

unless the court has abused its discretion . . . deference is inappropriate if the 

court's determination is based on a mistaken understanding of the applicable 
20 A-1175-23

law." Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997) 

(citations omitted) (quoting Payton, 148 N.J. at 559). A trial court abuses its 

discretion "when a decision is 'made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible basis.'" Est. 

of Kotsovska by Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Flagg 

v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). Since "[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, L.P. v. 

Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we review the applicability 

of the attorney-client privilege de novo. 

"It is well-settled under New Jersey law that communications between 

lawyers and clients 'in the course of that relationship and in professional 

confidence' are privileged and therefore protected from disclosure." Hedden v. 

Kean Univ., 434 N.J. Super. 1, 10 (App. Div. 2013) (quoting N.J.S.A. 2A:84A20(1); N.J.R.E. 504(1)). However, the privilege is "neither absolute nor 

sacrosanct." Id. at 11-12. Testimonial privileges are construed narrowly 

"because they prevent the trier of fact from hearing relevant evidence and 

thereby undermine the search for truth[,] . . . [and] courts sensibly accommodate 

privileges to the aim of a just result, and accept them to the extent they outweigh 
21 A-1175-23

the public interest in full disclosure." Mauti, 208 N.J. at 531-32 (citations and 

internal quotation marks omitted) (quoting State v. J.G., 201 N.J. 369, 383 

(2010)). 

 The attorney-client privilege recognizes that "the confidentiality of 

communications between client and attorney constitutes an indispensable 

ingredient of our legal system." Hedden, 434 N.J. Super. at 11 (quoting In re 

Grand Jury Subpoenas Duces Tecum, 241 N.J. Super. 18, 27-28 (App. Div. 

1989)). The privilege "[promotes] an open atmosphere of trust" and "rests on 

the need to 'encourage full and frank communication between attorneys and their 

clients.'" Id. at 10 (alteration in original) (quoting United Jersey Bank v. 

Wolosoff, 196 N.J. Super. 553, 561 (App. Div. 1984)). 

 Privileges "reflect 'a societal judgment that the need for confidentiality 

outweighs the need for disclosure.'" Mauti, 208 N.J. at 531 (quoting Payton, 

148 N.J. at 539). As the Supreme Court explained, "privileges protect interests 

and relationships that have been determined to be 'of sufficient social 

importance to justify some incidental sacrifice of sources of facts needed in the 

administration of justice.'" Ibid. (quoting M. v. K., 186 N.J. Super. 363, 371 

(Ch. Div. 1982)). 
22 A-1175-23

 While "exceedingly important," our Supreme Court has cautioned that the 

privilege is not "sacrosanct." Kozlov, 79 N.J. at 242. As noted, to pierce the 

attorney-client privilege, a party must satisfy Kozlov's three-part test. The first 

prong of the test, legitimate need, is construed narrowly and is only satisfied 

when the privilege has been waived or "is in conflict with a defendant's right to 

a constitutionally guaranteed fair trial." Mauti, 208 N.J. 537-38.

As the Mauti court explained, the test is not "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," as that approach 

"would eviscerate the privileges and trench on the legislative judgments 

informing them." Id. at 537. Further, the simple involvement of constitutional 

issues in the facts of a case does not necessarily indicate a constitutional right is 

"at stake." Id. at 539. 

 Here, as noted, the court expressly limited its finding plaintiff satisfied 

the first Mauti prong to the Sixth Amendment to the United States Constitution. 

Before us, the parties similarly confine their arguments to the Sixth Amendment 

and Article I, Paragraph 10 of the New Jersey Constitution. Accordingly, as 

noted, we limit our analysis to whether the record demonstrates plaintiff's Sixth 

Amendment rights were at stake in this matter. 
23 A-1175-23

The Sixth Amendment to the United States Constitution, which applies to 

the states by way of the Fourteenth Amendment, provides: 

In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury 

of the State and district wherein the crime shall have 

been committed, which district shall have been 

previously ascertained by law, and to be informed of 

the nature and cause of the accusation; to be confronted 

with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to have 

the Assistance of Counsel for his defence. 

[U.S. Const. amend. VI.] 

 The Sixth Amendment encompasses various rights, including the right to 

court-appointed counsel for criminal defendants unable to pay for an attorney, 

Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963); the right to offer testimony 

of witnesses and present evidence in one's defense, Taylor v. Illinois, 484 U.S. 

400, 409 (1988); the right for criminal defendants to cross-examine witnesses 

against them, Crawford v. Washington, 541 U.S. 36, 53-54 (2004); the right to 

a jury trial in criminal matters, Duncan v. Louisiana, 391 U.S. 145, 155-56 

(1968); the right to a speedy trial in criminal prosecutions, Klopfer v. North 

Carolina, 386 U.S. 213, 222-23 (1967); and the right to public access to criminal 

trials, In re Oliver, 333 U.S. 257, 266-68 (1948). Taken together, "the purpose 

of the rights set forth in [the Sixth] Amendment is to ensure a fair trial." United 
24 A-1175-23

States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006). While "[t]he Constitution 

guarantees a fair trial through the Due Process Clauses, . . . it defines the basic 

elements of a fair trial largely through the several provisions of the Sixth 

Amendment." Id. at 146 (quoting Strickland v. Washington, 466 U.S. 668, 684-

85 (1984)). 

It is well-established that the Sixth Amendment is generally not applicable 

in civil proceedings. See, e.g. Turner, 564 U.S. at 441 ("the Sixth Amendment 

does not govern civil cases"); N.T., 445 N.J. Super. at 492 ("[t]he Sixth 

Amendment right of confrontation is not applicable to civil proceedings" 

(alteration in original) (quoting N.J. Div. of Youth & Fam. Servs. v. V.K., 236 

N.J. Super. 243, 253 (App. Div. 1989))); N.J. Div. of Youth & Fam. Servs. v. 

N.S., 412 N.J. Super. 593, 634 (App. Div. 2010) ("[t]he Sixth Amendment 

safeguards an accused's right to counsel to defend a criminal prosecution. . . . It 

is not applicable in this civil proceeding"). Indeed, by its explicit language, the 

protections of the Sixth Amendment apply "[i]n all criminal proceedings." U.S. 

Const. amend. VI. On this point, plaintiff has identified no contrary authority, 

nor has our independent research uncovered any. 

Faced with the lack of legal authority on the foundational point relied 

upon by the court in support of its conclusion she satisfied the first Mauti prong, 
25 A-1175-23

plaintiff contends the issue is not whether Sixth Amendment rights apply in civil 

matters, but "whether [she] presented a Sixth Amendment issue to satisfy the 

'legitimate need' requirement under Kozlov and Mauti." We are not satisfied 

this is distinction with a difference. Mauti requires not just presentation of a 

constitutional issue, but that the constitutional right be at stake. 208 N.J. at 538-

39. Simply put, if plaintiff's Sixth Amendment rights do not apply to her civil 

action, the rights afforded by that amendment cannot be at "stake." 

Stated differently, contrary to the court's conclusion, maintaining the 

attorney-client privilege does not place any right afforded by the Sixth 

Amendment in jeopardy. Indeed, there is no right under the Sixth Amendment 

to "know what occurred" if an acquitted defendant discovers "there was fraud 

involved in the [criminal] trial," nor to "recourse against the fraudulent 

accusers." Although plaintiff's "freedom and liberty" were certainly at stake in 

the criminal action, nothing about plaintiff's claims here implicate either. She 

does not face criminal conviction, incarceration, or any other imposition upon 

her freedom or liberty should her civil claims fail. 

Nor does plaintiff's malicious prosecution claim alter the analytical 

calculus and, on this point, it appears the court conflated the constitutional issues 

in the criminal and civil actions. By its very nature, all malicious prosecution 
26 A-1175-23

claims necessarily involve a criminal proceeding, allegedly motivated by 

malice. See LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (holding "[m]alicious 

prosecution requires the plaintiff to prove four elements: (1) a criminal action 

was instituted by this defendant against this plaintiff; (2) the action was 

motivated by malice; (3) there was an absence of probable cause to prosecute; 

and (4) the action was terminated favorably to the plaintiff"). That the claim 

requires an underlying criminal action does not mean, however, that the 

constitutional protections present in such a proceeding are imported into a civil 

action in all circumstances. Stated differently, were we to accept plaintiff's and 

the court's position on this point, it would render the language of the Sixth 

Amendment limiting it to "criminal prosecutions" meaningless and would 

ultimately mean a constitutional right was "at stake" for purpose of piercing the 

privilege any time a claim involved a previous criminal action. 

Additionally, as the BOE defendants aptly note, none of plaintiff's claims, 

including count five sounding in malicious prosecution, seek vindication for 

violation of constitutional rights. They alleged no conduct violating any specific 

constitutional provision and brought no causes of action arising under the New 

Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, which provides recourse for such 
27 A-1175-23

violations. This stands in stark contrast to the claims they brought in the federal 

action, many of which specifically raised constitutional violations. 

Finally, we conclude plaintiff's reliance upon Merkle is misplaced. That 

case involved federal constitutional claims and the court specifically declined to 

exercise jurisdiction over the plaintiff's Pennsylvania state law claims. Merkle, 

211 F.3d at 785. Further, the Third Circuit rejected the plaintiff's contention 

that a Sixth Amendment right was implicated in her malicious prosecution 

claim. Id. at 792 (finding "[i]t is difficult to understand how the Sixth 

Amendment is implicated here"). 

As noted, the attorney-client privilege "protect[s] interests and 

relationships that have been determined to be 'of sufficient social importance to 

justify some incidental sacrifice of sources of facts needed in the administration 

of justice.'" Mauti, 208 N.J. at 531 (quoting M., 186 N.J. Super. at 371). While 

plaintiff's allegations are undoubtedly serious, she has failed to establish that 

any Sixth Amendment right is at stake to permit piercing the attorney-client 

privilege. 

Finally, we also address the portions of the court's orders directed at the 

in camera review process because the court's mandate seems unclear. We first 

detail the appropriate approach. "When a requesting party challenges an 
28 A-1175-23

assertion of privilege, the court must undertake an in camera review of the 

purportedly privileged document or information and make specific rulings as to 

the applicability of the claimed privilege." Brugaletta v. Garcia, 234 N.J. 225, 

245 (2018). When conducting its in camera review, the court "must examine 

each document individually, . . . explain as to each document deemed privileged 

why it has so ruled," and "make specific determinations regarding [the 

requesting party]'s access to them, including an expression of reasons for the 

court's rulings." Seacoast Builders Corp., 358 N.J. Super. at 542 (quoting 

Payton, 148 N.J. at 550); see also Comprehensive Neurosurgical, P.C. v. Valley 

Hosp., ___ N.J. ___, ___ (2024) (slip op. at 58) (directing court on remand to 

"conduct a document-by-document review" of documents claimed to be 

privileged). 

Here, the court determined plaintiff satisfied all three parts of the Kozlov 

test based upon solely its review of defendants' privilege logs, and then ordered 

defendants to produce the documents for a further in camera review. The proper 

procedure would have been to address the first prong of Kozlov, and if satisfied, 

conduct an in camera review of each of the documents individually to determine 

whether plaintiff met the second and third prongs, and make particularized 

findings as to each document. 
29 A-1175-23

Despite this irregularity, we are satisfied for the reasons expressed the 

court's Mauti finding was erroneous even without having reviewed the 

documents at issue. Should any future challenges to privilege arise, the court 

shall first conduct an in camera review of the documents sought before 

addressing the second and third Kozlov prongs. And, as noted, it should address 

each document individually and make appropriate findings. 

We decline to address the parties' remaining arguments as it is 

unnecessary for us to do so in light of our determination plaintiff failed to 

establish the first Kozlov prong. As we have reversed the court's May 11, 2023 

order, we similarly vacate its November 2, 2023 reconsideration order. 

Reversed, vacated and remanded. We do not retain jurisdiction.