5: Privilege Flashcards
Communication to a third party
Generally, if the communication is overheard by a third party, the privilege is destroyed. However, the presence of the third party does not destroy the privilege if:
i) The first two parties do not know that the third party is present (e.g., an unknown eavesdropper); or
ii) The third party is necessary to assist in the communication (e.g., a translator).
Waiver
A privilege may be waived if the person who holds the privilege:
i) Fails to assert the privilege in a timely manner (i.e., when the testimony is offered);
ii) Voluntarily discloses, or allows another to disclose, a substantial portion of the communication to a third party, unless the disclosure is privileged; or
iii) Contractually waives the privilege in advance.
A wrongful disclosure without the privilege holder’s consent does not constitute a waiver.
Work product doctrine
Documents prepared by an attorney for his own use in connection with the client’s case are not covered by the attorney-client privilege because they are not communications.
Such documents, however, are protected under the “work product” doctrine and are not subject to discovery unless the party seeking disclosure:
(i) demonstrates a substantial need for the information, and
(ii) cannot obtain the information by any other means without undue hardship.
The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.
Federal common law
In federal question cases, privileges are determined under federal common law, pursuant to Rule 501 of the Federal Rules of Evidence.
Physician-patient privilege
The privilege is not recognized under federal law, nor at common law, but it is recognized by statute many states.
The privilege covers statements made by a patient to a doctor for the purpose of obtaining medical treatment.
The privilege does not apply if:
(1) The information was for reasons other than treatment;
(2) The communication was made for an illegal purpose;
(3) There is a dispute between the patient and the physician; or
(4) The patient agreed to waive the privilege.
In many states, a patient is deemed to have waived the privilege by placing her condition in issue in a personal injury lawsuit.
Psychotherapist–patient privilege
Recognized in federal courts and most jurisdictions, it applies to confidential communications between a patient and a psychiatrist, psychologist, or licensed social worker for the purpose of treatment.
It does not apply if the communication was:
(1) The result of a court-ordered exam; or
(2) Taken as a part of a commitment proceeding.
Fifth Amendment privilege against self-incrimination
The privilege only covers current statements, i.e., it only protects individuals from being compelled to testify if there is a possibility of criminal consequences:
- It does not protect past statements;
- It does not apply to non-testimonial actions, e.g. blood samples, voice samples, or breathalyzer tests;
- It does not apply when there is no risk of criminal trouble, e.g., when the state gives a witness subject-matter immunity;
- it does not apply to statements given voluntarily.
The privilege is only available to natural persons, i.e., not corporations.
Spousal privilege: confidential marital communications
Held by both spouses, the privilege protects communications made between spouses in confidence in reliance on the sanctity of marriage.
Spouses can:
- refuse to reveal confidential communications; and
- prevent the other from revealing the communications.
The privilege survives after marriage.
Spousal privilege: spousal immunity
Spousal immunity gives a spouse the right to refuse to testify in a criminal case against the other spouse if:
- the spouses are currently married; and
- because legal separation does not terminate a marriage, spousal immunity continues until an annulment or divorce.
Spousal immunity covers testimony about anything, whether before or during marriage.
Under the federal system, the witness spouse holds the privilege—i.e., the non-witness spouse cannot prevent the witness spouse from testifying.
Spousal privilege: exceptions
Neither of the spousal privileges apply when:
(1) One spouse is suing the other; or
(2) When one spouse is charged with a crime against the other spouse or the children of either of them.
Inadvertent waiver: diversity
The federal inadvertent waiver rule applies to a diversity case, even though state rules regarding privileges are generally applied in a federal action based on diversity jurisdiction.
Inadvertent waiver
When made in a federal proceeding or to a federal office or agency, an inadvertent disclosure does not operate as a waiver of A–C privilege or the work-product protection in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including:
(a) Contacting the party to whom the communication was disclosed and requesting that they return, sequester, or destroy the information;
(b) If applicable, following Civil Rule 26(b)(5)(B).
Inadvertent waiver: previous state court proceeding
The federal rule on inadvertent disclosure does not apply when:
(1) the disclosure was made in a state court proceeding; and
(2) the applicable state law does not treat the disclosure as a waiver.
