(4) Evidence: Privileges

Question 1

Privileges Overall Rule

Answer 1

FRE courts are only bound to FRE privilege rules, and there are none, but in diversity cases state privilege rules will apply.

A privilege applies at all stages of a case or proceeding.

Question 2

Types of Privileges

Answer 2

1. Eavesdroppers
2. Attorney-Client
3. Physician-Patient
4. Spousal Immunity / Marital Communications
5. Psychotherapist-Patient
6. Clergy
7. Self-Incrimination
8. Government Privilege
9. Waiver

Question 3

Eavesdroppers

Answer 3

Generally for a privilege to apply the communication must be confidential.

If the communication is overheard by a 3rd party that the two party’s do not know is present then the privilege is not destroyed.

If the communication is overheard by a 3rd party that is known or anticipated privilege is destroyed.

Question 4

Overall Rule:

Attorney-Client Privilege

Answer 4

The attorney client privilege protects confidential communications between attorney and client from disclosure if: (1) the communication was intended to be confidential; AND (2) the communication was made for the purpose of seeking legal advice or representation.

Question 5

Exceptions & CA Difference:

Exceptions to the Attorney-Client Privilege

Answer 5

The privilege does not apply when: (a) the attorney is acting in a capacity other than as counsel (ex. Tax preparer, witness to a will, business partner); (b) legal services to further a crime or fraud; (c) communications relevant to a dispute between attorney & client (ex. Malpractice suit); OR (d) former co-clients who are now adverse. In CA an additional exception applies – the privilege does not apply if the attorney reasonably believes disclosure is necessary to prevent a crime that is likely to result in substantial bodily harm or death.

Question 6

Does the communication remain confidential after the client dies?

Attorney-Client Privilege

Answer 6

In Federal court YES communications remain confidential after the client dies, in CA NO, the privilege doesnt survive the client.

Question 7

Does the communicaiton remain confidential after the termination of the attorney-client relationship?

Attorney-Client Privilege

Answer 7

YES, Communications remain confidential after the termination of the attorney-client relationship.

Question 8

Who can assert the attorney-client privilege?

Attorney-Client Privilege

Answer 8

The attorney on behalf of their client, eventhough the client and its successors in interest hold the interest.

Question 9

Corporate Client Rule

Attorney-Client Privilege

Answer 9

When the client is a corporation – communication between the attorney and high level employees are protected and communication between the attorney and lower level employees are protected if the matter is within the employees corporate duties (ex. Superior tells them to communicate with outside counsel).

Question 10

Work Product Doctrine (FRE)

Attorney-Client Privilege

Answer 10

Documents prepared by an attorney or his agents in anticipation of or during litigation are protected from disclosure unless a party can show (1) a substantial need for the material; AND (2) the information cannot be obtained without undue hardship.

*Whether the identity of a witness constitutes work product is unsettled.

Question 11

Work Product Doctrine (CA)

Attorney-Client Privilege

Answer 11

Absolute Privilege: There is an absolute privilege applied to materials prepared in anticipation of litigation that are comprised of the attorneys mental impressions, notes or opinions.

Qualified Privilege: Material prepared in anticipation of litigation are under a qualified privilege and may be discoverable upon a showing of (1) substantial need; AND (2) the inability to acquire the materials elsewhere.

Question 12

Rule & Who holds the privilege:

Physician-Patient Privilege (CA Only)

Answer 12

There is no common law privilege thus the CA law states that confidential patient communications made by a physician for the purpose of medical treatment or diagnosis is privileged. The patient holds the privilege.

Question 13

Overall Rule & Types:

Spousal Privileges

Answer 13

Spousal privilege comprises two distinct privileges: spousal immunity and confidential marital communications.

Question 14

Rule & Who may assert:

Marital Communication

Spousal Privileges

Answer 14

Communications between spouses are privileged in both civil and criminal cases if (1) made during the course of a valid marriage; AND (2) were intended to be confidential. The privilege is held by both spouses and either may assert (or prevent the other spouse from testifying). Applies to communications made during marriage. The spouses may assert after divorce.

Question 15

Rule & Who holds privilege & CA Differences:

Spousal Immunity

Spousal Privileges

Answer 15

A person cannot be compelled to testify against their spouse in a criminal proceeding (even if the spouse is not a D). This applies to events that occurred before and during the marriage and is applicable to spouses in a valid marriage. The witness spouse holds this privilege.

In CA the spouse holding the privilege may refuse to testify in both civil and criminal cases.

Question 16

Rule & Who holds the privilege & who can assert the privilege?

Psychotherapist-Patient

Answer 16

FRE and many states recognize the privilege for confidential communications between psychiatrists, psychologist, or licensed social workers and patients in the course of diagnosis and treatment. The patient holds the privilege but the therapist must assert in the patients absence.

Question 17

When does the Psychotherapist-Patient Privilege not apply?

Answer 17

This privilege does not apply if (a) the patients mental condition is at issue; (b) communication was a result of a court ordered exam; or (c) the case is a commitment proceeding against the patient.

Question 18

Rule & Who holds the privilege & who can assert the privilege?

Clergy Privilege

Answer 18

Some jurisdictions have a privilege for confidential communication between clergy and a person. The person holds the privilege but the clergy member may assert.

Question 19

Rule & Who does this not apply to:

Self Incrimination

Answer 19

The 5th Amendment protects against self-incrimination. This protection applies against current statements (not prior). Corporations do not have this privilege.

Question 20

Government Privilege

Answer 20

The government at all levels is privileged against disclosing (1) the identity of an informant in criminal cases; AND (2) communication of official information (that is not open to the public) by or to public officials.

Question 21

Waiver

Answer 21

A privilege maybe waived by the person who holds the privilege if (a) they fail to assert the privilege in a timely manner; (b) they voluntarily disclose or allow another to disclose a substantial portion of the communication to a 3rd party; OR (c) contractually waives the privilege in advance.

Question 22

Is wrongful disclosure without consent of the person holding the consent a waiver?

Waiver

Answer 22

NO, wrongful disclosure without consent of the person who holds the consent does not constitute a waiver.