A New Jersey state appeals court has reversed the ruling of a lower court, finding, in a majority decision, that the email communication between the head women’s basketball coach at Kean University to the university’s general counsel was protected by the attorney-client privilege.
The underlying case centers on the accusation of the university’s former athletic director, Glenn Hedden, that he was wrongfully terminated on May 2, 2011, supposedly for failing to properly supervise subordinates in the athletic program. This alleged failure led to the university being sanctioned by the National Collegiate Athletic Association (NCAA) for violations of NCAA rules in connection with its women’s basketball program.
The dispute got its start when Hedden’s discovered that Michele Sharp, who was the head women’s basketball coach and a history professor at the university, and two of his superiors, were involved with creating a spurious class for nine women’s basketball players and changing grades so the team’s best player could maintain the mandatory 2.0 GPA needed to play.
According to a complaint filed by Hedden in the Superior Court of New Jersey, the fraudulent class, entitled “History of Spain,” was created on September 22, 2010 well after the semester had commenced and the add/drop period had ended. The class also violated university regulations for minimum class size, and two of the enrolled players had another class scheduled at the same time. The class further violated university regulations by not charging the enrolled players tuition, registration fees or late fees.
On January 4, 2011 Hedden met with officials, and suggested that the class violated university and NCAA regulations. Later that day, Hedden learned that a women’s basketball player’s GPA had fallen below the required 2.0 because an “incomplete” grade had changed to an “F” because she failed to complete her assignments and as a result became ineligible to play. However, that same day, Hedden discovered that the “F” grade had unexplainably changed back to an “incomplete,” thus restoring the player’s eligibility.
After finding incriminating evidence, Hedden reported the violation and fraudulent grade change on January 7, 2011. The university, claimed Hedden, did nothing, but stonewall and marginalize him. Hedden also claimed that despite his objections, “the university continued to engage in fraudulent activity… to ensure that the player would be able to play basketball.”
He was ultimately fired.
In the summer of 2011, Hedden filed a wrongful termination suit against the school and executive VP Connelly under New Jersey’s Conscientious Employee Protection Act (CEPA), which protects employees from adverse employment actions resulting from “whistle blowing.”
Consequently, the NCAA launched its own confidential investigation, and directed a Notice of Allegations to both Sharp and the university. Sharp retained her own attorney to represent her in the NCAA matter, and as part of her January 23, 2012 response, produced, through counsel, her January 29, 2010 e-mail to general counsel Michael Tripodi, which is at the core of the controversy in this appeal.
Although the University received a copy of Sharp’s submission to the NCAA, it claims it was never consulted beforehand and did not authorize disclosure of the disputed e-mail. Neither, however, did the university object to its release to the NCAA or assert any privilege attaching to the document, until, that is, the present litigation.
During discovery, plaintiff requested production of, among other things, the January 29, 2010 e-mail from Sharp to Tripodi. The university refused, asserting the e-mail was protected from disclosure by the attorney-client privilege because it was sent to counsel for the purpose of obtaining legal advice. Hedden disagreed, contending the e-mail was not contained in a privilege log and, in any event, the privilege was waived by Sharp’s disclosure of the e-mail to the NCAA without the university’s objection. The University countered that there was no waiver of the privilege because Sharp was not authorized by her employer — the actual holder of the privilege — to waive the privilege on its behalf.
Unable to resolve the matter, Hedden moved to compel production of the disputed e-mail. In granting the requested relief, the motion judge found that the defendant failed to prove Sharp’s purpose in sending the e-mail was to obtain legal advice and that, in any event, as holder of the privilege, Sharp’s submission of the e-mail to the NCAA constituted a waiver.
After a failed motion for reconsideration, the defendants appealed.
“We agree with the motion judge that as an employee of the university and acting within the scope of her employment, Sharp’s purpose in sending the e-mail to Tripodi was to solicit his legal advice as university general counsel and, thus, an attorney-client relationship was formed,” held the majority on the appeals court panel.
“Equally clear is that as head women’s basketball coach, Sharp was acting within the scope of her employment when soliciting legal advice from university counsel and, furthermore, that her communication to him was made in confidence.”
The panel then examined the “closer question,” which “is whether the university waived the attorney-client privilege upon Sharp’s disclosure of the e-mail to the NCAA.”
The panel notes that “the group of individuals who may waive the privilege on behalf of the organizational client is restricted to those who manage or control its activities. … Sharp does not fit within this category as she was neither a director nor officer of the university, nor did she serve in a management capacity. Moreover, Sharp was not acting under the direction of the university when she released the document to the NCAA, producing it through her own counsel on her own behalf, in response to an inquiry directed specifically to her by the NCAA. Thus, as Sharp was not the holder of the attorney-client privilege, it was not hers to waive.
Glenn Hedden v. Kean University, Matthew Caruso and Philip Connelly; Super. Ct. N.J., App. Div.; DOCKET NO. A-4999-12T2, 2013 N.J. Super. LEXIS 156; 10/24/13
Attorneys of Record: (for appellants) Michael J. Dee argued the cause (McElroy, Deutsch, Mulvaney & Carpenter, LLP; John J. Peirano, of counsel; Mr. Dee and Melanie D. Lipomanis, on the brief). (for respondent) David F. Corrigan argued the cause for respondent (The Corrigan Law Firm); Mr. Corrigan, of counsel; Mr. Corrigan and Bradley D. Tishman, on the brief).
