Privilege

Question 0

FRCP 501

Answer 0

Privileges in Federal court are governed by fed common law.

When state law governs the claims or defense (even if you are in fed court) then state law determines privileges.

Question 1

Privilege Framework Questions

Answer 1

A. When does it apply
1. Privileges apply at all times and where ever you are located
2. Look at the circumstances (factual foundation) and which stage of the proceedings are we at?
B. Who “holds” the privilege
1. Has it been “Asserted”
2. Has it been “Waiver?”
C. What is the scope of the privilege?
1. Communications or more?
2. Depends on the subject matter?
D. Is the privilege absolute or qualified
1. If absolute, there is no method anyone can ever get to the info
2. Exceptions (qualified) means there could be compelling circumstances when the court would override the privilege
a. Exceptions say that while this may look like a privilege, it really isn’t, for example, attorney-client privilege doesn’t apply if the client talks about perpetrating a future crime
3. Waiver can always be limited as you want ( for ALL privileges)

Question 2

Privileges against self incrimination

Answer 2

Foundation

1. Available to any witness in any proceeding
2. Protects people, not organizations
3. Applies only to criminal liability
4. Applies to testimony

4 Questions

1. It always applies
2. Anyone can hold it if the witness believes their answer might incriminate them
3. The scope of the privilege goes by individual questions, in both civil and criminal cases
4. ABsolute

Question 3

Attorney Client Privilege

Answer 3

Foundation

1. A communication
   a. two people must be talking or writing to one another
   b. privileges only protects what is said between the two, it does not protect any underlying facts (can’t hide documents by talking about them)
2. Between a client
3. and a lawyer
4. That is confidential
   a. Must be in a private setting and not open for the public to hear
   b. STatements in front of a 3rd party likely waive the privilege (unless in the home in front of a child)
   c. Interpreted broadly on the attorney’s side. Covering all their employees; interpreted very narrowly on the client’s side.
5. Concerns legal advice
   a. It must relate to the scope of the legal representation, therefore it can’t be just any type of conversation

4 Questions

1. It applies everywhere. Applies equally at pro bono work and initial consultation.
2. The client holds the privilege
   a. Attorney can assert the privilege
   b. Only client can waive the privilege. The attorney can’t waive it by themselves and if the clients wants to waive it, there needs to be a writing.
3. The scope is of communications and not underlying (pre-existing) materials
4. Absolute
   a. Privilege does not apply where legal services are sought in connection with planning or committing a future crime or fraud (not an exception, the privilege just never applied)

Question 4

Pyschotherapist- Patient Privilege

Answer 4

Foundation

1. A communication
2. Between a patient
3. And a therapist
4. that is confidential
5. And concerns diagnosis and treatment of mental or emotional problems.

4 Questions:

1. At all times
2. Client holds the privilege.
3. The privilege has broad scope. It also applies to social workers.
4. Not absolute, some courts allow criminal defendants to support their defense.

Question 5

Clergy-Communicant Privilege

Answer 5

Foundation

1. A communication
2. between a person
3. and clergy
4. that is confidential
5. that concerns seeking spiritual counseling

4 questions:

1. applies at all times
2. communicant holds the privilege
3. can include group counseling sessions

Question 6

Attorney Work Product

Answer 6

Foundation

1. Mental impressions, conclusions, opinions, legal theories
2. By an attorney (or by a client at attorney’s direction)
3. In anticipation of litigation
   a. No claim necessary
   b. Anything the attorney does to prepare if they believe a suit will come
   c. Preexisting items before anticipation not covered.

Mental impressions are absolutely privileged
Factual compilations (gathering documents) and witness statements are qualified

Question 7

Attorney work product v. Attorney client privilege

Answer 7

1. Scope
   a. AC: legal services only
   b. WP only in anticipation of litigation
2. Type
   a. AC - communicaitons
   b. WP - any documents prepared
3. Status
   a. AC : absolute
   b. WP: qualified

Question 8

Attorney Work Product Up John Test

Answer 8

1. Used when a company is the client
2. Determining factor is whether the employee is seeking legal advice for the company within the scope of their duties.
3. Conversation should be reasonable given the employee’s position
4. Lower level employees can assert the privilege, but only the core nucleus can waive the privilege.

Question 9

Marital Privilege- Spousal Testimony (still married)

Answer 9

Only applies to criminal cases, when a couple is still married, where one spouse is the D, gives on spouse the right to refuse to testify against the target spouse.
1. When does it apply?
a. One spouse must be a criminal defendant, the “target spouse”
b. The other is asked to testify. “testifying spouse”
2. Who holds the privilege
a. Testifying spouse controls
b. the testifying spouse can testify regardless of whether the other spouse consents
3. What is the scope of the privilege
a. All information (even before marriage)
==everything you know relating to the marriage/spouse, not limited to conversations
b. During the life of the marriage
==the spouse must be married at the time of the trial, and it only matter that they are married on paper (not that they are separated or want a divorce)
4. Absolute or qualified?
-The only exceptions are for crimes against/with your spouse/family

Question 10

Marital Privilege- Marital Communications (divorced)

Answer 10

In either criminal or civil trials, gives one spouse the right to refuse to testify about confidential communications made during the life of the marriage

1. Applies when?
   a. All confidential communication between spouses
   b. all proceeding criminal/civil trial
   c. all times in the proceeding
2. Who holds the privilege
   a. Both spouses - either can assert, BUT both MUST waive
   b. If one spouses refuses to waive, then everything remains confidential
3. What is the scope of the privilege?
   a. Confidential communicaitons (third party bust, anyone listening does away with the privilege)
   b. Last during the life of marriage (even after it ended)
4. Absolute or qualified
   a. The only exceptions are for crimes against/ with your spouse/family.

Question 11

Privileges that don’t exist on Federal Level

Answer 11

1. Doctor Patient
   CA distinction - recognized in CA, follows a very similar format as attorney client, requires confidential communication between a patient and physician; held by patient; only applies in civil cases
2. Reporter - Source