RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1377-25
IN THE MATTER OF ROMAN CATHOLIC ARCHDIOCESE OF NEWARK SEXUAL ABUSE LITIGATION. ___________________________
Argued May 12, 2026 – Decided June 15, 2026
Before Judges Sumners, Chase and Augostini.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8762-19.
Patrick Papalia argued the cause for appellant Seton Hall University (Archer & Greiner, PC, attorneys; Patrick Papalia and Christian A. Steuben, on the briefs).
Gabriel C. Magee argued the cause for respondent Jeffrey McCloskey (Baldante & Rubenstein, PC, Nagel Rice LLP, and Gregory Gianforcaro, attorneys; John W. Baldante, Gabriel C. Magee, Jeffrey Anderson (Jeff Anderson & Associates, PA), Trusha Goffe (Jeff Anderson & Associates, PA), Gregory Gianforcaro and Bradley L. Rice, of counsel and on the brief).
PER CURIAM On December 24, 2025, we stayed a Law Division discovery order and
granted appellant Seton Hall University's ("SHU") request to take an
interlocutory appeal. R. 2:2-4. We affirm in part and vacate and remand in part.
I.
This matter is a consolidated action of approximately 450 cases filed in
the wake of the Child Victims Act ("CVA"), S. 477/A. 3648 (2018), L. 2019, c.
120, § 2, 9-10, which permitted victims of childhood sexual assault to bring a
civil lawsuit against their abusers until their fifty-fifth birthday. These specific
actions seek damages against the Roman Catholic Archdiocese of Newark and
associated Parishes, Churches, Schools, and Entities ("RCAN"). One related
entity is SHU, a separately named defendant in five of these actions based on
the conduct of Theodore McCarrick.
McCarrick was a Catholic bishop and cardinal who served as the
Archbishop of Newark from 1986 to 2000. In 2017, an allegation of sexual
misconduct was made against McCarrick, prompting investigations by the
Vatican and various institutions that he was associated with.
In 2018, the New York Times reported that McCarrick had been removed
from the ministry because he sexually abused a minor while a priest in New
York.
A-1377-25 2 In July 2018, the Washington Post published an article with the headline
"Cardinal Theodore McCarrick is the target of new allegations of sexual
misconduct." The article described four new allegations against McCarrick, in
addition to the older credible allegation. According to the Washington Post,
Reverend Boniface Ramsey joined SHU's faculty in the 1980s and heard reports
from seminarians at SHU's Immaculate Conception Seminary ("ICS") of
McCarrick's inappropriate behavior.
McCarrick was previously the Chair of the Board of Trustees ("the
Trustees") and the President of the Board of Regents ("the Board") at SHU and
maintained a residence on the campus. In July 2018, SHU also received an email
from a former seminarian who alleged that McCarrick had inappropriately
touched him.
As a result of those complaints and having been aware that the CVA was
pending in the legislature, SHU's Office of General Counsel was worried about
potential liability. Therefore, SHU retained the law firm of Gibbons P.C.
("Gibbons"). Gibbons then retained the law firm Latham & Watkins LLP
("Latham") to conduct an independent investigation into the matter so it could
better advise SHU.
The Board's Executive committee received regular updates from Latham
and advice from Gibbons as the investigation continued. On August 21, 2019,
A-1377-25 3 Gibbons provided SHU with a legal memorandum containing legal advice and
the expected findings of Latham's investigation. The following week, Gibbons,
Latham, and the Board held a confidential meeting to discuss the factual findings
of the investigation and for Gibbons to provide legal advice.
As a result, the Board unanimously passed a resolution and report "to
address the misconduct of the individuals involved" uncovered in Latham's
investigation. The report stated that the investigation was complete and had
"found that McCarrick created a culture of fear and intimidation that supported
his personal objectives. McCarrick used his position of power as then-
Archbishop of Newark to sexually harass seminarians. No minors or other
University students were determined to have been affected by McCarrick." See
Seton Hall Univ., Seminary Review Update (Aug. 2019),
https://www.shu.edu/news/seminary-review-update.html ("Seminary Review").
On September 6, 2019, Latham provided Gibbons with its investigatory
report (the "Latham Report") and labelled it as privileged and confidential work
product. Disclosure of the report was placed under heavy restrictions. To read
the Latham Report, members of the Board had to make an appointment, turn
over their cell phone, sign what was essentially a non-disclosure agreement, and
enter a designated reading room alone. No screenshots or copies of the report
were permitted, and members were not allowed to discuss its contents unless in
A-1377-25 4 Executive Session or as required by law. On September 18, 2019, Gibbons
provided updated advice to SHU based on the Latham Report.
Meanwhile, the Vatican was conducting a wider independent investigation
into McCarrick's alleged misconduct and requested SHU provide it with the
Latham Report. SHU believed Catholic Canon laws required it to comply. As
such, SHU provided the report, and the Vatican agreed that it would remain
confidential.
During this time, Pope Francis had requested McCarrick's resignation
from the College of Cardinals. In 2019, after the Congregation for the Doctrine
of the Faith had found him culpable of acts of adultery, contrary to the Sixth
Commandment, McCarrick was convicted of sexual misconduct by the Church
and laicized. McCarrick passed away in April 2025.
The Vatican published its investigatory findings in a 2020 report. Sec. of
State of the Holy, Report on the Holy See's Institutional Knowledge and
Decision-Making Related to Former Cardinal Theodore Edgar McCarrick (1930
to 2017) (2020), https://www.vatican.va/resources/resources_rapporto-card
mccarrick_20201110_en.pdf ("Vatican Report"). In its published report, the
Vatican noted that the Latham Report "remains confidential but was made
available to the Holy See," and it disclosed that the Latham Report "found no
evidence that McCarrick made sexual advances while in bed with seminarians
A-1377-25 5 or engaged in sexual contact with anyone on the campus of [SHU]." Vatican
Report, at 457-58. It found that even though SHU knew about McCarrick
sharing a bed with seminarians, "no action was taken to curb the practice at the
time, in part because it was understood to be non-sexual and consensual."
Vatican Report, at 446-47.
In September 2020, the Law Division consolidated all cases against
RCAN for case management and discovery purposes and appointed plaintiffs'
litigation counsel ("PLC") to act as the class representative for plaintiffs.
Thereafter, various case management orders were entered concerning discovery.
In September 2022, the court granted the PLC's motion to compel discovery.
RCAN then moved for leave to file an interlocutory appeal, which we denied.
In December 2024, Politico published a story detailing that Msgr. Joseph
Reilly had been elevated to president of SHU, even though he had been
implicated in the sexual abuse scandal related to McCarrick. This article
detailed a "secretive internal investigation that concluded that Reilly knew of
sexual abuse allegations and that he did not report." It noted that Seton Hall
hired Gibbons and Latham to review McCarrick's "influence and actions" at the
university during his years leading the Newark archdiocese.
As a result of the story, PLC sent a discovery deficiency letter to SHU
requesting all documents related to the investigation into McCarrick and the
A-1377-25 6 culture of fear and intimidation at SHU. The PLC noted there was no privilege
log provided. After receiving no response, the PLC requested a case
management conference. In February 2025, the court did so. Following the case
management conference, the court entered an order compelling SHU to either
produce the Latham Report and "other related documents, including any memos
and correspondences, in unredacted and redacted versions" to the court or move
for a protective order. SHU opted for the latter and pursuant to Rule 4:10-3
moved for a protective order.
In March 2025, the court ordered SHU to turn over an unredacted version
of the Latham Report, related memorandum, correspondences, and documents,
along with a privilege log, for an in-camera review. In addition, the Order
required the Bates stamping of documents and that SHU was required to provide
the PLC with a privilege log identifying the documents submitted to the court
and the asserted privilege. SHU submitted nearly 3,500 documents containing
20,000 pages for the in-camera review. SHU's privilege log contains different
categories of documents. Broadly speaking, the privilege log contained: (1)
emails; (2) email attachments; and (3) loose documents (referred to as
"electronic files"). The emails include emails between (1) Gibbons and Latham
(not SHU), (2) Gibbons and SHU (not Latham), (3) Gibbons, Latham and SHU,
and (4) Latham's communications with third parties during the investigation.
A-1377-25 7 Many "electronic files" represent either scans of printed documents SHU
emailed to Gibbons upon the latter's request, or Word documents prepared by
Latham or Gibbons during Gibbons' engagement by SHU. Some of the attached
documents were created prior to the retention of Gibbons.
On November 12, 2025, the court found no privilege or protections
applied to most of the documents. The court concluded that the attorney-client
privilege shielded only the very narrow category of emails among all three
entities: SHU, Latham and Gibbons. The court also found the work product
doctrine only shielded disclosure of "any conclusions made by Latham"
contained in the Latham Report. Thus, the court ordered SHU to produce: the
Latham Report with Latham's conclusions redacted; all emails with attachments
that did not include SHU, Gibbons, and Latham on the email chain; and all
attachments that were created/maintained by SHU during the investigation,
including all documents and electronic files that pre-dated the start of the
investigation. We granted SHU motion for leave to appeal as to the Latham
Report and associated documents, including witness-interview notes, and legal
memoranda prepared by Gibbons.
II.
We review the court's discovery decision employing an abuse of discretion
standard. C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014). "We
A-1377-25 8 generally defer to a trial court's disposition of discovery matters unless the court
has abused its discretion or its determination is based on a mistaken
understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68,
80 (App. Div. 2005). An abuse of discretion "arises when a decision 'is made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th
Cir.1985)).
However, issues regarding questions of law are decided de novo. Barlyn
v. Dow, 436 N.J. Super. 161, 170 (App. Div. 2014). The applicability of the
attorney-client privilege is a legal question and thus subject to a de novo review.
Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257 N.J. 33, 79-80 (2024)
(citing Hedden v. Kean Univ., 434 N.J. Super. 1, 10 (App. Div. 2013)). So is
the application of the work product doctrine because it is codified in a court rule.
R. 4:10-2; see also Hansen v. Rite Aid Corp., 253 N.J. 191, 212 (2023) ("A trial
court's interpretation of a court rule is a determination of law which this Court
reviews de novo" (quoting Occhifinto v. Olivo Constr. Co., LLC, 221 N.J. 443,
453 (2015))).
A-1377-25 9 III.
A.
We are persuaded by SHU's contention that the court erred when it found
that no attorney-client relationship existed between it and Latham through
Gibbons.
"Communication between a lawyer and his client in the course of that
relationship and in professional confidence, are privileged," and the client alone
holds the right to waive this privilege. N.J.R.E. 504(1); N.J.S.A. 2A:84A-20.
This relationship between an attorney and his client "is the oldest privilege
known to common law." Halbach v. Boyman, 369 N.J. Super. 323, 328 (App.
Div. 2004) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). As
Justice Pashman aptly noted, "[i]f the rule of law is the nation's secular faith,
then the members of the Bar are its ministers." State v. Sugar, 84 N.J. 1, 12
(1980). "The root of the attorney-client privilege is the recognition that 'sound
legal advice or advocacy serves public ends' and requires full and frank
communication between a client and his counsel." Halbach, 369 N.J. Super. at
328 (quoting Dontzin v. Myer, 301 N.J. Super. 501, 506 (App. Div. 1997)).
"[T]he privilege regarding confidential communications between an
attorney and client 'extends to the necessary intermediaries and agents through
whom the communications are made.'" State v. Davis, 116 N.J. 341, 361 (1989)
A-1377-25 10 (quoting State v. Kociolek, 23 N.J. 400, 413 (1957)). An investigator "who may
act as an agent of either the defendant or his counsel[] renders services on behalf
of the defendant." Id. at 362. Thus, confidential disclosures are privileged even
though they are made through a "necessary intermediary" rather than the
attorney. In re Subpoena Duces Tecum on Custodian of Recs., Crim. Div.
Manager, 420 N.J. Super. 182, 186 (App. Div. 2011) (quoting Davis, 116 N.J.
at 361), aff'd 214 N.J. 147 (2013); see also State v. Pavin, 202 N.J. Super. 255,
262 (App. Div. 1985) (finding privilege only applies between insured and an
adjuster if the communication is made "for the dominant purpose of the defense
of the insured by the attorney and where confidentiality is the reasonable
expectation of the insured").
So long as the communication is made "to aid the attorney in giving legal
advice to his client or to prepare for litigation, then the privilege applies."
Hannan v. St. Joseph's Hosp. & Med. Ctr., 318 N.J. Super. 22, 27 (App. Div.
1999) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 551 (1997)). The
attorney-client privilege applies to notes, communications, and other documents
if they are "prepared at the behest of and for" counsel. See Macey v. Rollins
Env't Servs. (N.J.), Inc., 179 N.J. Super. 535, 540 (App. Div. 1981) (holding
statements prepared by a corporate agent at the request of the corporation's
general counsel were protected by attorney-client privilege); Hannan, 318 N.J.
A-1377-25 11 Super. at 27-28 (finding a summary and chronology of events prepared by a
plaintiff at his attorney's request was protected by attorney-client privilege).
However, the attorney-client privilege "is neither absolute nor
sacrosanct." Hedden, 434 N.J. Super. at 11-12 (citing Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 504(3)). Because
privilege is used to exclude evidence, it "runs counter to the fundamental theory
of our judicial system that the fullest disclosure of the facts will be best lead to
the truth and ultimately to the triumph of justice." Horon Holding Corp. v.
McKenzie, 341 N.J. Super. 117, 124 (App. Div. 2001) (quoting In re Selser, 15
N.J. 393, 405 (1954)). "The attorney-client privilege is not restricted to legal
advice, though '[t]he privilege is limited to those situations in which lawful legal
advice is the object of the relationship.'" Rivard v. Am. Home Prods, Inc., 391
N.J. Super. 129, 154 (App. Div. 2007) (alteration in original) (quoting In re
Grand Jury Subpoena on Gonnella, 238 N.J. Super. 509, 512 (Law Div. 1989)).
The Court in Payton distinguished "an attorney who provides legal
services or advice to an organization and one who performs essentially nonlegal
duties." 148 N.J. at 550. The attorney-client privilege is inapplicable where an
attorney conducts an investigation, "not for the purpose of preparing for
litigation or providing legal advice, but rather for some other purpose ." Id. at
551. The Payton Court declined to apply either an absolute or qualified privilege
A-1377-25 12 to a "self-critical analysis" investigation and report, and it instead believed
"case-by-case balancing is much more appropriate in accommodating self-
critical analysis than is a per se privilege." Id. at 545, 547-48. This balancing
test recognizes that "certain interests in disclosure are strong enough, in their
reflection of important public policies, to outweigh such confidentiality
concerns under most, if not all, circumstances." Id. at 548 (citing, among others,
CPC Int'l v. Hartford Accident & Indem. Co., 262 N.J. Super. 191, 195-204
(Law Div. 1992)). The Court believed that in claims of great public interest,
such as the eradication of discrimination and sexual harassment, "the balance
will favor disclosure" but allowed for "adequate protective measures to ensure
maximal confidentiality given the necessity of disclosure." Id. at 549-50.
Our Court has also held that the privilege may be pierced under extremely
limited circumstances. In Kozlov, the Court established a three-part test which
a party must satisfy to pierce the privilege; privileged material may be disclosed
where: (1) there is "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 is 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, 243-44 (1979) (quoting In re Farber, 78 N.J. 259, 276-77
(1978)). The first prong of Kozlov is met "only in the most narrow of
A-1377-25 13 circumstances, such as where a privilege is in conflict with a defendant 's right
to a constitutionally guaranteed fair trial." State v. Mauti, 208 N.J. 519, 538
(2012). Otherwise, Kozlov would "relegate [the attorney-client privilege] to the
status of a pedestrian discovery dispute." Dontzin, 301 N.J. Super. at 508. The
piercing test must only be applied in "circumstances so grave . . . that the
privilege must yield to the most fundamental values of our justice system." Ibid.
(alteration in original) (quoting In re Nackson, 114 N.J. 527, 532 (1989)).
The court concluded that there was no attorney-client relationship
between Latham and SHU because Latham explicitly wrote in its report that
"Gibbons (and not [SHU]) was Latham's client in this matter[,] that [SHU] has
never been a Latham client, and that Latham will not represent [SHU] in any
matter related to these allegations." However, this is not dispositive. There is
undoubtedly an attorney-client relationship between Gibbons and SHU, and the
court's analysis failed to consider that Latham was acting as an agent of Gibbons
when it conducted the investigation. As Davis, 116 N.J. at 361, makes clear, an
investigator acting on behalf of counsel renders service on behalf of that
counsel's client. Even though no attorney-client relationship existed between
SHU and Latham, an attorney-client relationship existed between Gibbons and
SHU that extended to Latham as a necessary agent of Gibbons. The attorney-
A-1377-25 14 client privilege would then apply if the relationship was for giving legal advice
or preparing for litigation.
B.
We next move to SHU's assertion that the work-product privilege applies
to the documents. Moreover, SHU argues that the court erred because it made
conclusory findings that plaintiff had shown substantial need and undue
hardship compelling the production of the work-product documents. We agree.
The work-product doctrine is an exception to "New Jersey's general policy
of encouraging full and open discovery of all relevant information." Paladino
v. Auletto Enters., Inc., 459 N.J. Super. 365, 370 (App. Div. 2019). The doctrine
was first recognized in Hickman v. Taylor, 329 U.S. 495, 498-99 (1947), where
a retained lawyer interviewed survivors of a boat accident and prepared a report
based on his notes of the interviews. The Court found that the interview notes,
private memoranda, and personal recollections "fall[] outside the arena of
discovery and contravenes the public policy underlying the orderly prosecution
and defense of legal claims. Not even the most liberal of discovery theories can
justify unwarranted inquiries into the files and the mental impressions of an
attorney." Id. at 510. The Court believed an attorney's ideas, beliefs, and mental
impressions should be "inviolate" and that to compel their disclosure would
result in "[i]nefficiency, unfairness and sharp practices" that would ill serve the
A-1377-25 15 interests of the clients and the cause of justice. Id. at 511. Hence, the work-
product doctrine recognizes the need for lawyers to "work with a certain degree
of privacy, free from unnecessary intrusion by opposing parties and their
counsel." O'Boyle v. Borough of Longport, 218 N.J. 168, 189 (2014).
New Jersey codified the work-product doctrine in Rule 4:10-2(c), which
provides that:
a party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Determining whether the work-product doctrine applies to each document
requires "a case-by-case, fact-specific analysis." Paladino, 459 N.J. Super. at
374 (citing Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 81-82 (App. Div.
2007)). "The first inquiry is whether the materials were prepared in anticipation
of litigation or trial by another party or that party's representative." Ibid., See
A-1377-25 16 also Tractenberg v. Township of West Orange, 416 N.J. Super. 354, 374 (App.
Div. 2010). A document may be prepared in anticipation of litigation before
litigation is commenced or even threatened. Miller v. J.B. Hunt Transport, Inc.,
339 N.J. Super. 144, 149 (App. Div. 2001) (citing, among others, Martin v.
Bally's Park Place Hotel & Casino, 983 F.2d 1252, 1260-61 (3d Cir. 1992)).
There must, however, "have been an objectively reasonable basis for
anticipation of litigation." Ibid. (citing 8 Wright & Miller's Federal Practice &
Procedure § 2024 at 343 (2d ed. 1994)). If the materials were prepared in
anticipation of litigation, the party seeking the materials must then show a
substantial need for their production and that he or she is unable, without undue
hardship, to obtain the substantial equivalent of those materials. Paladino, 459
N.J. Super. at 374-75 (citing R. 4:10-2(c)).
"The first prong is always satisfied when the discovery sought is a
statement of another party or a witness, as the prior statement is extremely
helpful in cross-examining a witness." Medford v. Duggan, 323 N.J. Super. 127,
137 (App. Div. 1999). The second prong, however, is harder to show, since "the
person who gave the statement may always be deposed. Moreover, the
deposition may often constitute the substantial equivalent of the prior
statement." Ibid. Accordingly, any documents produced in anticipation of
litigation, which there is a substantial need for their production, and that plaintiff
A-1377-25 17 is without undue hardship able to acquire are protected by the work-product
doctrine.
C.
The PLC argues that even if a privilege did apply, that privilege was
waived when SHU provided the documents to the Vatican. They posit there is
no meaningful and material connection between the Vatican and SHU and argue
that by providing allegedly privileged documents to the Holy See, SHU has
waived any privilege. We are not persuaded.
When attorney-client privilege applies, it "is ordinarily waived when a
confidential communication between an attorney and a client is revealed to a
third party." O'Boyle, 218 N.J. at 186 (citing Stengart v. Loving Care Agency,
Inc., 201 N.J. 300, 323 (2010)). However, when third-party "disclosure of
confidential attorney-client communications is necessary to advance the
representation, disclosure will not waive the privilege." Ibid. (citing Rawlings
v. Police Dep't of Jersey City, 133 N.J. 182, 196 (1993)); Kociolek, 23 N.J. at
413.
In addition to the advancement of representation, there exists a "'common
interest' doctrine which protects communications made to a non-party who
shares the client's interests." In re State Comm'n of Investigation Subpoena No.
5441, 226 N.J. Super. 461, 466 (App. Div. 1988) (citing United States v. Zolin,
A-1377-25 18 809 F.2d 1411, 1417 (9th Cir. 1987), aff'd in part and vacated in part, 491 U.S.
554 (1989)). Where "two entities are formally interrelated" and one was
"created at the insistence of" the other, and "[t]he operations of the entities are
at least closely intertwined," one may share privileged information, such as a
report and communications made by an attorney retained to conduct
investigations, render legal advice, and make recommendations without waiving
privilege. Id. at 467-68.
In 2001, we found guidance from federal case law on this matter:
The common interest exception may be asserted with respect to communications among counsel for different parties if "(1) the disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties."
[Laporta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J. Super. 254, 262 (App. Div. 2001) (quoting Holland v. Island Creek Corp., 855 F. Supp. 4, 6 (D.D.C. 1995)).]
The court in Laporta also found that it was not necessary for every party's
interest to be identical, so long as they "have a 'common purpose.'" Ibid.
(quoting United States v. McPartlin, 595 F.2d 1321, 1336 (7th Cir. 1979)). The
court found that "when such privileged information is turned over to a non-
adversary who has a legitimate interest in the information, . . . there is no waiver
A-1377-25 19 unless it can be shown that there was a 'conscious disregard' of the possibility
that an adversary would gain access to the material." Ibid. (citing In re John
Doe, 662 F.2d 1073, 1081 (4th Cir. 1981)).
In 2014, Pope Francis sought "[t]he effective protection of minors and a
commitment to ensure their human and spiritual development," and created the
Commission for the Protection of Minors to find "the most opportune initiatives
for protecting minors and vulnerable adults, in order that we do everything
possible to ensure that crimes such as those which have occurred are no longer
repeated in the Church." Pope Francis, Chirograph of His Holiness Pope Francis
for the Institution of a Pontifical Commission for the Protection of Minors
(2014). The Holy See's position on the issue of sexual abuse of minors by clerics
was emphasized again in 2019, when the Pope declared that "while gravely
affecting our societies as a whole, this evil is in no way less monstrous when it
takes place within the Church." Pope Francis, Address of His Holiness Pope
Francis at the End of the Eucharist Concelebration (February 24, 2019),
https://www.vatican.va/content/francesco/en/speeches/2019/february/documen
ts/papa-francesco_20190224_incontro-protezioneminori-chiusura.html.
Notably, at the time, the Vatican was investigating the allegations against
McCarrick on the orders of the Pope and published the Vatican Report the
following year. The Vatican Report made clear that the materials, including
A-1377-25 20 documents, interviews, and testimony "were gathered for the sole purpose of
contributing to this Report and are not authorized for any other use." The
Vatican Report at 2. It further noted that the Latham Report "remains
confidential but was made available to the Holy See." Id. at 446.
Both the Vatican and SHU shared a common interest in investigating
McCarrick, namely the shared goal of not having someone credibly accused of
sexual misconduct and abuse as part of their staff or clergy. There was no
"conscious disregard" that the Vatican might make the Latham Report available
to the public, as both parties had agreed to keep the report confidential. The
information provided to the public through the Vatican Report was not new, as
it repeated only the information that had been made public by the victims of
abuse and by appellant's own published statements.
ICS makes clear that as a part of the Catholic community, it is "obedient
to the Magisterium." Seton Hall Univ., Immaculate Conception Seminary
School of Theology, Our Mission (Dec. 11, 2023),
https://www.shu.edu/theology/mission.html. As such, when the Vatican
requested ICS and SHU provide the Latham Report to assist in an investigation
ordered by the Pope, it was not simply a question of local public policy but a
"canonical governance question" that SHU believed "went to [its] essential
Catholic identity and mission." As a part of the Church, SHU provided the
A-1377-25 21 Vatican with the Latham Report as part of its religious duty and in furtherance
of their shared goal of investigating the extent of McCarrick's abuse and
preventing the abuse from happening to others. Thus, SHU did not waive any
privilege by Sharing the Latham Report to the Vatican. 1
IV.
Applying these principles, we turn to an analysis of the disputed
documents. We consider in turn the Latham report, the legal memoranda,
investigative reports, and the emails and attachments that were the subject of the
court's order.
The Latham Report
The court ordered that the Latham Report be turned over to PLC but
allowed for the redaction of any conclusions or opinions. The court further
found that even if there was an attorney-client relationship between SHU and
Latham, plaintiffs had shown a legitimate need for the report sufficient to pierce
the privilege. We disagree.
Gibbons was retained in 2018, before the CVA was passed, which
expanded the statute of limitations for victims of childhood abuse to file claims,
1 Because it is not necessary for our determination of whether a privilege applies, we do not address the issue of whether the Latham Report and associated documents should have been included on a privilege log. A-1377-25 22 went into effect. However, the introduction of the CVA to the Legislature in
January 2018 was no secret, just as the allegations against McCarrick were no
secret. Amidst the multiple allegations against McCarrick, a reasonably prudent
entity like SHU would investigate its own potential liability, considering the
seriousness of the allegations against McCarrick, his high position in the
Church, and the length of time he was involved with ICS. This would have been
doubly true when considering the media coverage McCarrick and the allegations
against him had garnered.
Gibbons had been retained "to commission an independent review of
McCarrick's influence and actions at the Seminary." See Seminary Review.
Gibbons then retained Latham. The Latham Report lists three main issues their
investigation focused on: (1) if there was any evidence to substantiate the
complaints against McCarrick; (2) whether and how SHU responded to any
complaints regarding McCarrick's misconduct; and (3) whether SHU's policies
and protocols were consistent with federal law and best practices. The first two
issues are consistent with anticipation of litigation, namely finding evidence to
either substantiate or disprove any potential claims and providing the
background for a potential negligence defense and subject to another exception
are privileged.
A-1377-25 23 Plaintiff has not met the requirements under Kozlov for an exception to
warrant a piercing of the privilege. Under the test outlined in Kozlov the first
"need" prong is not fulfilled as the present matter does not involve "the most
narrow of circumstances," such as a defendant's right to a constitutionally
guaranteed fair trial. Mauti, 208 N.J. at 538. Moreover, although the Latham
Report may be relevant and material to the issues in the case, plaintiff has not
established the remaining elements of the Kozlov test.2 The trial court found
plaintiffs had demonstrated a "substantial need" for the Latham Report because
they were "unable without undue hardship to obtain the substantial equivalent
of the materials by other means." This vague and speculative statement does
not meet the high threshold required under Mauti to pierce the privilege.
In contrast to the first two sections of the Latham Report, the third section,
"University Sexual Harassment Policies," is clearly a self-critical analysis that
"examined whether the University's historical and current policies satisfy Title
IX" and if and how they would have applied to the McCarrick allegations. This
part was not prepared in anticipation of litigation since it was used to amend and
improve SHU's practices. As in Payton, the public interests, namely eradicating
2 The Latham Report itself does not answer questions about the identity of witnesses because it identifies them in general terms such as "Priest 2," "ICS Seminarian 5," or "Instructor 1." The Latham Report only names witnesses whose allegations were already made public. A-1377-25 24 sexual harassment and abuse as well as increasing transparency at SHU and in
the Church, weigh strongly in favor of disclosure of this part. The chilling effect
that would discourage witnesses from answering interviews and surveys
truthfully is minimal, since the Latham Report does not disclose any names, and
the survey of fifty-nine seminarians was conducted anonymously. Thus, it is in
the public interest to disclose self-critical analyses of SHU's policies and
procedures. Accordingly, the third section of the Latham Report, and documents
relating to it, should be produced.
The court's order regarding SHU to turn over the Latham report is vacated
as to the first two sections. Because there are some materials that may cover
both the investigation into McCarrick and the self-critical analysis, on remand,
the court shall determine whether some documents may require redactions
before they are produced to PLC. It is likely some interviews with seminarians,
staff, or clergy covered both the accusations against McCarrick and the
interviewee's knowledge of SHU's policies and procedures; the former should
be redacted while the latter should not. The court's previous order allowing for
the redaction of mental impressions and conclusions, regardless of which
investigation they fell under, is affirmed.
A-1377-25 25 Legal Memoranda
In considering the twenty-three legal memoranda and attorney notes
prepared by Gibbons for SHU, SHU argues that the court erred by not addressing
the memoranda separately in its opinion and instead including it under
"electronic files" subject to discovery. SHU notes that the court did not find any
exception to the attorney-client privilege, even though the court found that the
attorney-client relationship existed. We agree.
As with the full Latham Report, the documents prepared in anticipation of
litigation in relation to the McCarrick investigation are protected by attorney
client privilege, as they were used to assist Gibbons in rendering legal advice to
SHU. See Paff v. Div. of Law, 412 N.J. Super. 140, 154 (App. Div. 2010)
(noting that "it is beyond dispute that the attorney-client privilege applies
whenever confidential legal advice is rendered to [the client]"). They are also
protected under the work-product doctrine. On remand, the court shall
determine specifically if each of these documents were prepared in anticipation
of litigation or if they concerned the self-critical analysis portion of the
investigation. The latter shall be produced.
Latham Investigation Notes
There are approximately ninety Latham witness interview notes. These
documents all appear on the privilege log as "electronic files," and were ordered
A-1377-25 26 to be turned over to PLC. In its decision and order, the court did not specifically
address these documents. On remand, the court must determine if either the
attorney-client or work product privilege applies to each note and whether there
is a self-critical analysis portion, which should be produced. See Seacoast
Builders Corp. v. Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003) (quoting
Payton, 148 N.J. at 550) ("When a New Jersey trial court reviews documents in
camera, it must 'make specific determinations regarding plaintiff's access to
them, including an expression of reasons for the court's rulings.'").
Emails
The bulk of the approximately 3,500 documents consist of emails. SHU
asks us to consider the large volume of emails and their attachments, noting that
they are related to the Latham Report. See Hedden, 434 N.J. Super. at 11 (noting
the attorney-client privilege extends to "an e-mail communication between
attorney and client during the course of a professional relationship and in
confidence") (internal citation omitted); Seacoast, 358 N.J. Super. at 554 (noting
an email from client to its law firm was "obviously protected by the attorney-
client privilege as a communication with counsel in the course of a professional
relationship and in confidence").
SHU argues that there are emails between it and Gibbons, with no third-
party communications, in which Gibbons provides legal advice to SHU based
A-1377-25 27 on the Latham investigation that are clearly protected by attorney-client
privilege. SHU also notes that there are approximately 972 emails between
Latham and Gibbons regarding the investigation and that the emails are
protected by attorney-client privilege because they were only created due to
SHU's retention of Gibbons. Likewise, SHU argues, the emails between only
SHU and Latham are protected since Latham is an extension of the Gibbons-
SHU relationship. We are persuaded by these arguments.
The court found that email communications between Gibbons, SHU, and
Latham were protected by attorney-client privilege because there was a clear
attorney-client relationship between Gibbons and SHU, and this extended to
communications with Latham. However, the court misapplied its discretion in
finding that any emails between Latham and SHU, where Gibbons was not
copied, or Gibbons and SHU, where Latham was not copied, were not protected.
On remand, a fact-specific analysis needs to be completed to determine whether
each email was prepared in anticipation of litigation. Moreover, the court must
determine if the documents contain self-critical analysis, in which case that part
should be produced.
SHU also contends that e-mails between SHU, Latham or Gibbons, and
third parties should be protected because they are the work product of Latham 's
investigation. The court noted that many of these emails had attachments that
A-1377-25 28 "predated this investigation" and went back to the 1980's. The court reasoned
that to apply privilege to documents simply because they were attached to an
attorney-client communication would cause otherwise discoverable material to
escape disclosure. We agree with the court that applying the privilege to
documents created before the retention of Gibbons simply because they were
attached to an attorney-client communication would cause otherwise
discoverable material to escape disclosure. Thus, on remand, an individual
assessment needs to be completed of each email to determine whether a privilege
applies. Additionally, SHU should have the opportunity to contest whether any
of these attached pre-retention documents have a stand-alone privilege
precluding disclosure.3
3 We note that in a recently published opinion we held that where an investigation predates the initiation of an action, a "sufficiently close temporal nexus between the claims, the undertaking of the investigation, and the filing of the complaint" can be evidence that an attorney was acting as both an investigator and a legal advisor and that a document was prepared in anticipation of litigation. See C.S. v. Brick Recycling Co., ___ N.J. Super. ___, ___ (App. Div. June 1, 2026) (slip op. at 17). We remain convinced that the Latham Report was prepared in anticipation of litigation given Seton Hall's concerns regarding the pending CVA. Regarding older documents contained within the Latham Report, where the temporal nexus is more attenuated, those may nevertheless be subject to separate privilege(s), depending on their content, notwithstanding that they predate the investigation. A-1377-25 29 V.
Finally, SHU argues that on remand, we should appoint a special
adjudicator. Whether to appoint a special adjudicator is left to the discretion of
the trial court. Zehl v. City of Elizabeth Bd. of Educ., 426 N.J. Super. 129, 136
(App. Div. 2012). A trial court may enter an order of reference appointing a
"special adjudicator only upon approval by the Assignment Judge, and then only
when all parties consent or under extraordinary circumstances." R. 4:41-1.
When appointed to oversee discovery, a special adjudicator "must examine each
document individually and make factual findings" just as the trial court must.
Hammock by Hammock v. Hoffman-Laroche, 142 N.J. 356, 382 (1995). As
such, we decline to interfere with the trial court's case management, and we
leave it to their discretion.
Affirmed in part, vacated and remanded in part for further proceedings
consistent with this opinion. We do not retain jurisdiction.
A-1377-25 30