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 (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.

One particularly important application occurred nearly 20 years later in Kinsella v. Kinsella, 150 N.J. 276 (1997), which is a case dear to the hearts of divorce and family law attorneys like me. Therein, the court applied the three-part test under Kozlov to a situation in which a litigant was alleged to have waived the psychologist-patient privilege, N.J.R.E. 505, by filing a complaint for divorce based on “extreme cruelty.” Id. at 308. The court reversed for, among other things, failure to establish that the information could not be secured from a less intrusive source under the third prong of Kozlov.