September 11, 2017 Articles

The Kozlov Test for Piercing Privileges Is Alive and Well

By Andrew M. Shaw

Mark Twain is said to have quipped, "The reports of my death have been greatly exaggerated." Setting aside questions of veracity, the quote might be applied with equal force to the privilege-piercing analysis under In re Kozlov, 79 N.J. 232, 398 A.2d 882 (1979).

In Kozlov, the New Jersey Supreme Court established a three-part test for piercing privileges: (1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source. Id. at 243–44. Afterward, that piercing test was interpreted as broadly applicable to virtually any scenario in which a privilege had been challenged.

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