A Low or Mid-Level Employee Can Create A Privileged Communication, But Cannot Waive The Privilege Once Created

Hedden v. Kean University, A-4999-12T2, decided by the New Jersey Appellate Division on October 24, 2013, provides a tutorial on the ability of low to mid level employees to create privileged attorney-client communications, and to waive that privilege by subsequent disclosures.

Hedden involves a claim by Kean University’s former athletic director against the University (and others, not relevant here) under the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 et seq., commonly referred to as the “Whsitleblower Statute.” The gravamen of Hedden’s CEPA claim was that his employment was terminated by the University because he reported to the NCAA what he believed to be a violation of University and NCAA regulations related to a summer trip to Spain planned by the women’s basketball coach. The alleged violation came to Hedden’s attention when a math teacher reported to him that a member of the women’s basketball team was not taking a sufficient number of credits to maintain her eligibility. Hedden investigated and learned that a course had been created entitled “History of Spain,” and that the course had nine registrants, all members of the women’s basketball team. Further investigation by Hedden revealed that a basketball player’s grades had apparently been changed to keep her eligible. Shortly after filing his reports, Hedden’s employment was terminated by the University, and the CEPA case ensued.

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