Pg 48 Flashcards
What is involved in privileges?
Except as otherwise provided by statute, no person has a privilege to refuse to be a witness, or disclose information in discovery, or to prevent another from being a witness or disclosing information in discovery. There is no present privilege or right to refuse to testify or produce documents. Essentially everyone must participate in the court process unless a privilege applies
What is the only circumstance that a privilege applies?
In places where testimony can be compelled. If someone discloses information in a place where testimony cannot be compelled, then privileges do not apply
What is involved in choice of law?
Generally this is governed by the common law in individual states unless the Constitution/federal statute/Supreme Court says otherwise. State law governs when the claim or defense is a state law.
– State law applies to: diversity cases
– federal law applies to: federal question jurisdiction for things like bankruptcy, patent law, immigration, and also to federal criminal cases
So the federal government prosecutes federal crimes in federal court and the state government prosecutes state crimes in state court
Which law do most cases involve?
State law
If a plaintiff was a county employee that got fired for committing a crime, and he sues the county in federal court under a federal act for violating his constitutional rights, what law will the court’s ruling be based on?
Federal common law because the privilege of a witness is governed by common law as interpreted by the courts of the US
What is the difference between how the FRE treats privileges and how California does?
California courts always apply California state statutory privilege law
If a person is claiming a privilege, what do they have the burden to establish?
The elements of that privilege
Must confidentiality as a privilege be established through the elements for privileges?
No, confidentiality is presumed and needn’t be proven
Once a person claiming a privilege establishes the elements of it, what must the opponent do?
– Negate an element of privilege to show that it wasn’t met
– show that even if the elements are met, the privilege was waived and doesn’t apply anymore
– show that an exception applies so that the privilege is destroyed
What are privileges meant to do?
To protect certain classes of confidential information
What are some of the different privileges?
Attorney client, doctor-patient, spouses, work product, medical
