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____________________________ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1175

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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, 202 4 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 c riminal prosecution in which plaintiff Dr. Christine Lentz 1 was acquitted of second-degree official misconduct, third-degree theft, and third-degree co mputer-related theft, and the resulting civil action alleging, inter alia, discri mination and malicious prosecution. That later action gave rise to the t wo orders under review

. Specifically, defendants Dr. Kathleen Taylor and th e Ocean City Board of Education (OCBOE) (collectively, BOE defendants) , and their counsel, defendants Comegno Law Group, P.C., Jeffrey R. Cacc ese, Esq., and Mark G.

1 For ease of reading, we refer to Drs. Lentz and Ta ylor by t he ir surnames , intending no disrespect to t he ir 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 assert ed a per quod claim.4 A- 1175

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Toscano, Esq. (collectively, the Comegno defendants ) challenge a May 11, 2023 order which grant ed 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 whi ch the court granted, in part, their application for r econsideration. For the reasons that follow, we reverse, vacate bot h orders, and remand for proceedings consistent with this opinion. In s um, 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 attorn ey-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 documen ts. I. In late 2014 and early 2015, plaintiff, then emplo yed by the Ocean City School District as vice principal and athletic director, se rved as the chair for the committee negotiating the collective bargaining agr eement (CBA) on behalf of the Ocean City Administrators' Association (OCAA). At that time, defendant Taylor was the superintendent for the District, rep resenting the OCBOE in the negotiations, and the Comegno defendants were couns el to the OCBOE.5 A- 1175

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In May 2015, the Comegno defendants and Taylor beg an to suspect that someone on the OCAA negotiation committee had acces sed Taylor's email, because the committee was privy to information whic h had allegedly been shared only in emails between Taylor and the Comegn o defendants. Plaintiff alleges the information had been previously shared with the committee "as early as [f]all 2014." The Comegno defendants hired defe ndant DFDR Consulting, LLC (DFDR), a computer consulting company, to investigate the iss ue. Taylor, the Comegno defendants, and DFDR reached t he 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, a nd 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 an d defendant Toscano "pressured [her] to resign her position as [a]thlet ic [d]irector and remain solely6 A- 1175

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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 ref used. Plaintiff alleges that in June 2015, defendant Cac cese "initiated an investigation with the [p]rosecutor with the intent to harm Lentz and remove her from her position." According to plaintiff, Cacces e informed the prosecutor that the Comegno defendants were investigating allegatio ns that Taylor's school email was "unlawfully accessed without Taylor's kno wledge or consent." Subsequently, on approximately June 24, 2015, plai ntiff received a letter informing her "that she was charged with the unauth orized 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, eff ective August 1, 2015, they would initiate a tenure charges action" and seek to revoke her tenure. Plaintiff accordingly agreed to retire which, according to th e complaint, she was led to believe "would resolve all of the issues [related t o] her employment." In July 2015, the BOE defendants allegedly informed plaintiff "the August 1, 2015 retirement date proposed by Caccese and Tos cano 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

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Plaintiff's subsequent attempt to rescind her retir ement request was "denied by way of non-response." The Cape May County Prosecutor began investigat ing plaintiff in late June 2015. According to plaintiff, "Toscano and DF DR forwarded information [to the prosecutor] that implicated only Lentz in w rongdoing but failed to provide information about other employees who were known to have unlawfully accessed the computers of Taylor and other school p ersonnel." 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 fr om DFDR" deleted a portion of that email which indicated the IP addr esses were "of limited value when determining the source of access or administra tive changes" and Microsoft could not "guarantee the addresses logged are of th e actual customer IP address." Defendants vehemently dispute purposefully deleting any portion of the email. Plaintiff further posits defendants failed to infor m the prosecutor that Taylor had lost a second iPad.
In August 2015, plaintiff was indicted and charged wi th 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

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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 un der § 1983; common law malicious prosecution; unlawful discrimination in v iolation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 t o -50; conspiracy; breach of contract; tortious interference with contract; i ntentional infliction of emotional distress, and loss of consortium. The District Court granted defendants' motion to dismiss each of the federal c laims. 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 estab lish any Fourth Amendment violation or Fourteenth Amendment due process viola tion related to the criminal trial. It then declined to exercise jurisdiction o ver 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 discriminate d 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) Taylor9 A- 1175

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and the Comegno defendants tortiously interfered wi th the CBA; (4) all defendants intentionally inflicted emotional distre ss upon her; and (5) all defendants maliciously initiated her criminal prose cution. 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 arg uments , 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 K ozlov. 3 Specifically, with respect to whether plaintiff established a legitima te need for the evidence , th e court considered the Mauti 4 decision, and found it "impossible to look at this

3 Absent a waiver or a party placing privileged commu nications at issue, t o 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 info rmation sought cannot be obtained from a less intrusive source. In re Kozlo v, 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 cons titutional 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 narrow10 A- 1175

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tort matter without the criminal overtones to it" o r "to read this complaint without seeing that there are constitutional overtones to it." The court reasoned the allegations of "conspiracy and prosecution" rai sed "clearly constitutional issues" and this case "is the only forum in which t he plaintiff can seek recourse for that constitutional violation." As to the relevant and material prong, the court e xplained "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 informat ion, as depositions would be "an effort in futility" because "[a]ny counsel is g oing 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] coun sel [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 provide d." It clarified that "there

of circumstances, such as where a privilege is in c onflict with a defendant's right to a constitutionally guaranteed fair trial." Id. at 538.11 A- 1175

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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 st ated 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 p laintiff'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 fo rty-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 revie w "within [forty-five] and [sixty] days." Defendants moved for reconsideration, arguing the court improperly relied upon disputed factual allegations, and inapp ropriately applied a probable cause standard when conducting its Kozlov analysis. Further, they contended there was no constitutional right at stake consiste nt 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, 20 23 written order, and12 A- 1175

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explained its decis ion 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 re asonable inferences.'" Even under that standard, however, the court concluded p laintiff had met her burden under Kozlov. With respect to the legitimate need prong under Mau ti, the court found plaintiff's constitutional right to a fair trial un der the Sixth Amendment was at stake, expressly conclud ing her malicious prosecution claim was "the civil equivalent of a constitutional right to a fair tr ial" and the criminal matter and constitutional issues were inseparable from the civ il claims. It rejected defendants' contention that plaintiff's acquittal e stablished no constitutional right was at issue and indeed found her "freedom an d liberty were at stake in the criminal trial," which are "clearly constitutional issues." 5

5 Before the court, plaintiff also argued her civil c laims affect ed her rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Am endments. Before us , however, plaintiff limits her argument that she sat isfied Mauti and the first prong of Kozlov by relying exclusively on the Sixth Amend ment. A nd , as discussed infra , the court's decision expressly limit ed 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, 46913 A- 1175

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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 a cquittal it is determined that there was fraud involved in the trial, the acquitted defe ndant is entitled to know what occurred," and (3) "an acquitted defendant is entit led to recourse against the fraudulent accusers" which "only occurs in civil co urt." Additionally, it explained a contrary conclusion would "never [allow for] recourse for a falsely charged litigant, as they could never obtain necess ary information through discovery to pursue their claims against their perp etrators 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. I ts 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 inform ation was "not relevant and material." The court also again foun d plaintiff established there was no less intrusive source available, not ing "[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

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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 explain ed it would conduct an in camera review of the documents to determine if t hey "are in fact work product." If not, it would order the documents pro duced unless subject to another privilege, but if they were, the court woul d again engage in a Kozlov analysis. In conclusion, the court found "the publ ic interest in knowing the truth is substantial" and the public's and plaintiff's ri ght "to know if there was any fabrication of evidence" outweighed defendants' ass ertion of privilege. It added "this balance is further protected by an in camera review." The court vacated the portion of its May 11, 2023 o rder requiring the parties to meet and review the documents, and inste ad ordered defendants to "produce any and all documents listed in any privil ege logs as subject to the attorney-client privilege and the work product priv ilege to the court for in camera review" within forty-five days. It also sta yed its order "conditioned on [d]efendants timely filing an [i]nterlocutory [a]pp eal with the Appellate Division." Defendants moved for leave to appeal, which we gr anted on an accelerated basis.15 A- 1175

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II. Before us, the BOE defendants argue the court erre d in granting plaintiff' s motion to pierce the attorney-client privilege beca use she failed to show a legitimate need for the evidence. Specifically, th ey contend this civil matter implicates no constitutional right, and plaintiff c oncedes there has been no waiver. The BOE defendants maintain "the protectio ns 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 f orth therein to "criminal prosecutions," and "well-established case law" demo nstrates the Sixth Amendment does not apply to civil actions, includin g Turner v. Rogers, 564 U.S. 431, 441 (2011); N.J. Div. of Child Prot. & Pe rmanency 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 'constitution al right at stake' to satisfy the 'legitimate need' requirement." The BOE defendants also argue the court erred in i ts conclusion that plaintiff's malicious prosecution claim "is the civ il equivalent of a constitutional16 A- 1175

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right to fair trial." Relying on DiBella v. Boroug h of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005), they distinguish a common law m alicious prosecution, as pled here, from a constitutional malicious prosecut ion claim, which requires an additional element of "a deprivation of liberty con sistent with the concept of seizure as a consequence of a legal procee ding. " They also highlight plaintiff's acquittal and her unsuccessful constitutional claim s 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 rathe r 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 Seac oast Builders Corp. v. Rutgers , 358 N.J. Super. 524, 542 (App. Div. 2003). Additio nally, the BOE defendants maintain the court could not have properly determin ed the documents were relevant and material to plaintiff's claims, as req uired 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 proceedings17 A- 1175

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pertains to the appointment of counsel when a party may lose their liberty as a result of the proceeding, such as in State v. Ashfo rd, 374 N.J. Super. 332, 337 (App. Div. 2004), in which an indigent defendant ha d 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 Six th Amendment has no application to this matter. They also argue "none of the e lements of a malicious prosecution claim bear upon what constitutes a 'fai r 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 co urt correctly found a Sixth Amendment interest implicated here, as she was "not informed of the nature and cause of the accusations that were made a gainst her." She argues her "acquittal does not automatically mean that her Con stitutional rights are no longer pertinent." Plaintiff distinguish es the cases relied upon by the BOE defendants, noting each "discuss[ed] how a party do es not have Sixth Amendment rights during civil proceedings" but "tha t idea is not presented in this case." Rather, plaintiff contends "[t]he issu e before the [c]ourt is whether [p]laintiffs presented a Sixth Amendment issue to s atisfy the 'legitimate need' requirement under Kozlov and Mauti." In support of her position that she18 A- 1175

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satisfied that requirement, plaintiff highlights th e 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 betw een common law malicious prosecution and constitutional malicious prosecution, noting the court "found it ludicrous that [p]laintiffs needed to rai se two separate malicious prosecution claims." She note s 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 consti tutional and malicious prosecution claims against a school district and su perintendent. She argues her malicious prosecution claim implicated a constituti onal right, as in that case, where the court found the teacher's exercise of the ir 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 t hat it would review all documents in camera" and if it "found that they wer e not relevant and material, then the [j]udge would not supply them to [p]lainti ffs." She also maintains the court properly reviewed the description of the docu ments provided by19 A- 1175

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defendants in their privilege log to determine thei r relevance and materiality, and these communications "between and among the defendants " alleged to have conspired against plaintiff satisfied the requireme nt. Plaintiff notes she do es not object to any in camera review, but "only want[s] t o ensure that [she] ha [s] access to discovery." Further, she argues an in ca mera 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 defenda nts. Plaintiff also maintains the court properly conduc ted a full factual analysis for each prong, which are interrelated. She highli ghts the court's rejection of some of her allegations, and the deference typicall y 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 f actual determinations with the information that was provided."
III. "New Jersey's discovery rules are to be construed l iberally 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 disposi tion . .

. unless the court has abused its discretion . . . de ference is inappropriate if the court's determination is based on a mistaken unders tanding of the applicable20 A- 1175

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law." Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997) (citations omitted) (quoting Payton, 148 N.J. at 55 9). A trial court abuses its discretion "when a decision is 'made without a rati onal 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 consequence s that flow from established facts are not entitled to any special deference," M analapan 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 commu nications between lawyers and clients 'in the course of that relation ship 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 hearin g relevant evidence and thereby undermine the search for truth[,] . . . [an d] courts sensibly accommodate privileges to the aim of a just result, and accept them to the extent they outweigh21 A- 1175

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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 constitu tes 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. 1 8, 27-28 (App. Div. 1989)). The privilege "[promotes] an open atmosphe re of trust" and "rests on the need to 'encourage full and frank communication between attorneys and their clients.'" Id. at 10 (alteration in original) (quo ting 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

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While "exceedingly important," our Supreme Court ha s 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 Koz lov 's three-p art test. The first prong of the test, legitimate need, is construed na rrowly and is only satisfied when the privilege has been waived or "is in confli ct 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 br oad equitable balancing test pursuant to which any privilege is subject to piercing if the adversary 'needs' relevant evidence that cannot be obtained from anot her 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 in dicate a constitutional right is "at stake." Id. at 539. Here, as noted, the court expressly limited its fi nding plaintiff satisfied the first Mauti prong to the Sixth Amendment to the United States Constitution

. Before us, the parties similarly confine their argu ments to the Sixth Amendment and Article I, Paragraph 10 of the New Jersey Const itution. Accordingly, as noted, we limit our analysis to whether the record demonstrates plaint iff's Sixth Amendment rights were at stake in th is matter.23 A- 1175

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The Sixth Amendment to the United States Constitution, whi ch applies to the states by way of the Fourteenth Amendment, prov ides:

In all criminal prosecutions, the accused shall enj oy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall h ave been committed, which district shall have been previously ascertained by law, and to be informed o f the nature and cause of the accusation; to be confr onted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and t o have the Assistance of Counsel for his defence. [U.S. Const. amend. VI.] The Sixth Amendment encompasses various rights, in cluding the right to court-appointed counsel for criminal defendants una ble 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 pro secutions , Klopfer v. North Carolina , 386 U.S. 213 , 222 -23 (1967); and the right to public access to crimi nal trials , In re Oliver, 333 U.S. 257, 266-68 (1948). Taken t ogether, "the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial." United24 A- 1175

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States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006). While "[t]he Constitution guarantees a fair trial through the Due Process Cla uses, . . . it defines the basic elements of a fair trial largely through the severa l provisions of the Sixth Amendment." I d. 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 Yout h & 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"). Inde ed, by its explicit language, the protections of the Sixth Amendment apply "[i]n all c riminal 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 found ational point relied upon by the court in support of its conclusion she satisfied the first Mauti prong,25 A- 1175

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plaintiff contends the issue is not whether Sixth A mendment rights apply in civil matters, but "whether [she] presented a Sixth Amend ment issue to satisfy the 'legitimate need' requirement under Kozlov and Maut i." We are not satisfied this is distinction with a difference. Mauti requi res not just presentation of a constitutional issue, but that the constitutional r ight be at stake. 208 N.J. at 538- 39. Simply put, if plaintiff's Sixth Amendment rights d o not apply to her civil action, the rights afforded by that amendment canno t be at "stake." Stated differently, contrary to the court's conclus ion, maintaining the attorney-client privilege does not place any right afforded by the Sixth Amendment in jeopardy. Indeed, there is no right u nder the Sixth Amendment to "know what occurred" if an acquitted defendant d iscovers "there was fraud involved in the [criminal] trial," nor to "recourse against the fraudulent accusers." Although plaintiff's "freedom and liber ty" were certainly at stake in the criminal action, nothing about plaintiff's clai ms here implicate either. She does not face criminal conviction, incarceration, o r any other imposition upon her freedom or liberty should her civil claims fail

. Nor does plaintiff's malicious prosecution claim al ter the analytical calculus and, on this point, it appears the court c onflated the constitutional issues
in the criminal and civil actions. By its very nature, all malicious prosecution26 A- 1175

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claims necessarily involve a criminal proceeding, a llegedly motivated by malice. See LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (holding "[m]alicious prosecution requires the plaintiff to prove four el ements: (1) a criminal action was instituted by this defendant against this plain tiff; (2) the action was motivated by malice; (3) there was an absence of pr obable cause to prosecute; and (4) the action was terminated favorably to the plaintiff"). That the claim requires an underlying criminal action does not mea n, however, that the constitutional protections present in such a procee ding are imported into a civil action in all circumstances. Stated differently, w ere 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" me aningless and would ultimately mean a constitutional right was "at stak e" for purpose of piercing the privilege any time a claim involved a previous crim inal 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 n o conduct violating any specific constitutional provision and brought no causes of a ction arising under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, which prov ides recourse for such27 A- 1175

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violations. This stands in stark contrast to the c laims they brought in the federal action, many of which specifically raised constitut ional violations. Finally, we conclude plaintiff's reliance upon Merk le is misplaced. That case involved federal constitutional claims and the court specifically declined to exercise jurisdiction over the plaintiff's Pennsylv ania state law claims. Merkle , 211 F.3d at 785. Further, the Third Circuit reject ed 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 u nderstand 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 s ufficient social importance to justify some incidental sacrifice of sources of facts neede d 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 ha s 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 mandat e seems unclear. We first detail the appropriate approach. "When a requesting party challenges an28 A- 1175

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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." Bruga letta v. Garcia, 234 N.J. 225, 245 (2018). When conducting its in camera review, the court "must examine each document individually, . . . explain as to eac h document deemed privileged why it has so ruled," and "make specific determinat ions regarding [the requesting party]'s access to them, including an ex pression 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 co urt 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' pr ivilege logs, and then ordered defendants to produce the documents for a further i n camera review. The proper procedure would have been to address the first pron g of Kozlov, and if satisfied, conduct an in camera review of each of the document s individually to determine whether plaintiff met the second and third prongs, and mak e particularized findings as to each document.29 A- 1175

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Despite this irregularity, we are satisfied for the reasons expressed the court's Mauti finding was erroneous even without ha ving reviewed the documents at issue. Should any future challenges t o privilege arise , the court shall first conduct an in camera review of the docu ments sought before addressing the second and third Kozlov prongs. And, as noted, it should address each document individually and make appropriate fin dings.
We decline to address the parties' remaining argument s as it is unnecessary for us to do so in light of our determi nation plaintiff failed to establish the first Kozlov prong. As we have rever sed the court's May 11, 2023 order, we similarly vacate its November 2, 2023 reconsideration order. Reversed, vacated and remanded. We do not retain j urisdiction.