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privilege be construed narrowly.^162 As such, the judge ordered
the disclosure of the names of the participants and the date of
the discussion in DV2.^163 He also ruled that the statute was not
unconstitutionally vague and that because “[the] Legislature
showed respect to the Supreme Court” in acknowledging
Christy, the PSA did not violate separation of powers
principles.^164
The judge then turned to the documents in question. Having
interpreted the PSA to create a full privilege, the judge was left
to fashion an appropriate test for when to actually apply the
privilege. The judge concluded that, notwithstanding Valley’s
failure to report the incident, Valley had prepared DV2 in “good
faith” and “substantial[ly] compli[ed]” with the PSA, and thus
was entitled to the protections of the statute.^165 Nonetheless, the
judge suggested that the eventual trial judge, as “gatekeeper,”
should have a copy of the confidential documents to ensure that
no eventual witness gives testimony contradicting the document
because “the court can never function in a way [allowing the
presentation of] improper testimony.”^166 The judge reasoned that
this caveat was simply a matter of judicial “integrity.”^167 On the
other hand, the judge found DV5 to be a “Risk Management” or
(^162) Id. at 50–51.
(^163) As support, the judge cited a prior New Jersey case ordering an
attorney to reveal the address of a client, attorney-client privilege
notwithstanding. See id. at 52–53 (citing Horon Holding Corp. v. McKenzie,
775 A.2d 111 (N.J. Super. Ct. App. Div. 2001)). That the judge felt
compelled to utilize case precedent dealing with an entirely different privilege
should indicate the novelty of the legal questions presented in Applegrad.
(^164) Id. at 39.
(^165) Id. at 51. If, on the other hand, the judge detected “bad faith or fraud
or concealment or a cover up.... [The protection] could be lost and the
sanction should be beyond [the hospital] paying a fine. Paying a fine does
nothing to the person who had treatment and had a concealment occur... .”
Id.
(^166) Id. at 61–62.
(^167) Id. The judge also suggested the appointment of a “discovery master”
to monitor the process and to “see if there’s any problems that are later
developed.” Stenographic Transcript of Proceedings Supplemental Decision at
24, Sept. 14, 2011, Applegrad, No. PAS-L-908-08 [hereinafter Sept. 14
Record].