Other crap I don't want to write too much about

Question 1

The best evidence rule comes into play when:

Answer 1

1) Case turns on the contents of the written instrument
(i. e In an action for breach of K, defendant admits making the K but denies the breach. Plaintiff testifies that ∆ delivered the goods on the 10th while the K calls for delivery on the first.) [must look at the K]

2) The knowledge was obtained solely from the writing.
(i. e ∆ is on trial for murdering his wife. The officer testifies that when ∆ was arrested, he had a letter stating that the wife was having an affair…. the only way the officer knows of ∆’s motive is through that letter.)

Question 2

What is the best evidence rule?

Answer 2

If the best evidence rule applies, then you must provide the originals of the writing. (writing includes anything, including photos, X-rays etc.)

Rule a) Duplicates and photocopies are considered original… v. handwritten copy
– Not admissible if there was a genuine concern as to the original’s authenticity anyway

Rule b) For voluminous docs, allowed a summary of them as long as those docs are available for inspection.

Rule c) If the writing is lost or destroyed, testimony is allowed as to its contents
–unless it was destroyed in bad faith and the one who destroyed it is testifying as to its contents.

Question 3

What are the two spousal privileges?

Answer 3

1) Spousal testimonial privilege

2) Confidential communications privilege

Question 4

What is the Spousal testimonial privilege

Answer 4

• Only available in criminal cases
• Testifying spouse is the holder of the privilege so she can testify if she wants to
• Can testify about matters that occurred before or during the marriage (but not about what her spouse said to her, because that is the confidential communications privilege)

Question 5

What is the confidential communications privilege

Answer 5

• Holder of the privilege is the ∆ spouse (other spouse)
• Protects communications during marriage (but not before or after)
• Privilege survives marriage.

EXCEPTIONS:
- not available when it is spouse v. spouse or in a criminal case where spouse/children are victims

Question 6

Doctor-Patient privilege

Answer 6

1) Not availed in FRE, but if diversity case and state allows it, then available.

• Privilege holder is the patient and applies where
  a) Patient intended info to be confidential
  b) for purposes of obtaining diagnosis or treatment
  c) And the info was pertinent to diagnosis/treatment.

EXCEPTIONS:

1) Not available in malpractice suit against the doctor
2) Physician’s aid sought to further a crime or tort
3) Party put his health at issue (personal injury etc.)

**CA doesn’t recognize this privilege in criminal cases… only in civil cases.

Question 7

Attorney-client privilege

Answer 7

• Client is the holder. Applies where
  1) Client intended the communication to be confidential
  2) for the purposes of facilitating legal service

EXCEPTIONS:
Not available when legal services is sought to further a crime, or in malpractice suits against attorney.

** A third person secretly listening in without client’s knowledge doesn’t mean the privilege is waived, as long as client took reasonable means to keep the information confidential.

Question 8

In a personal injury action, Joe testifies that the defendant ran the red light. Defendant then wishes to show that Joe is not a credible witness because he has bad eyesight. In a prior unrelated case, Joe’s attorney sent him to be examined by an eye doctor so the doctor could testify as an expert in that case. Is the information conveyed by Joe to the doctor during the eye examination privilege in the current personal injury action?

Answer 8

No… information disclosed to a doctor who has been hired to testify shows that the information was not intended to be confidential.

Question 9

Attorney-Client privilege

Employee - lawyer communications rule:

Answer 9

FRE & CA is basically the same.

If company authorized employee to speak to lawyer, then the communications are privileged BUT

A mere witness, who happens to be an employee is not privileged communication, even if the company authorized the employee to tell the lawyer what happened.

Question 10

Action for personal injuries arising out of collision between Corporation’s delivery truck and another vehicle in Corporation’s parking lot. Employee of corporation happened to be parking his car at the time and witnessed the accident. His supervisors orders him to write a statement for the Corporation’s lawyers describing what he saw. Is that privileged?

Answer 10

FRE and CA - Not privileged attorney-client communication.

Question 11

Psychotherapist-patient privilege exception:

Answer 11

Privilege does not apply in

1) patient puts mental condition at issue
2) services were sought to aid in crime or fraud
3) malpractice actions against psychotherapist

CA only
4) therapist has reasonable belief that patient is a danger to himself or others and that disclosure is necessary to end the danger.