Privileges Flashcards
When does federal vs. state law re privileges apply in federal court?
In federal court, in cases arising under federal q. jdx, federal privileges apply.
In federal court, in cases arising under diversity jdx in which the substantive law of the state governs the claims, state privileges apply.
Which privileges are recognized by federal common law?
- atty-client privilege
- spousal immunity
- privilege of confidential marital comms
- psychotherapist/social worker-patient privilege
- clergy-penitent privilege
- govt privileges
Note: NOT physician-patient, accountant, journalist
How can a privilege be waived?
- contract
- failure to assert privilege
- voluntary disclosure of matter by privilege holder
Note: privilege not destroyed by unknown eavesdroppers
What falls under the atty-client privilege?
(a) confidential comms (b) between atty-client - or representative of either (c) made during professional legal consultation (d) unless the privilege is waived or an exception is applicable
When are employees’ of corporate clients statements protected by atty-client privilege?
When employer authorized or directed them to make statements
Does the atty-client privilege apply to underlying facts, pre-existing docs, or real evidence?
No - person may be forced to testify re underlying facts or give over physical evidence.
If atty requests physician’s appt for client, are comms between client and physician covered by the federal atty-client privilege?
Yes, but not if the doctor is called to testify as an expert.
Note that state physician-patient privileges will not apply here b/c there is not treatment anticipated.
When two joint clients talk to atty and later have dispute against each other re prior joint interest, does the atty-client privilege apply?
No. Only applies wrt third parties.
Does the atty-client privilege expire ever?
No, not even when client dies.
What are the 4 exceptions to the atty-client privilege?
- atty’s services sought to aid in what client should have known was a crime
- client put’s services in issue, e.g. tax fraud defense to rely on atty advice
- breach of duty between client-atty, e.g. malpractice claim
- communication is re issue that is relevant to case in which more than one party is claiming through same deceased client (wills?)
When is atty work product protected from discovery?
Generally protected unless party can show necessity.
When is comms between a patient-physician privileged?
Under many state laws, comms is privileged if:
- professional relationship for purposes of medical treatment
- info acquired for purposes of diagnosis/treatment
- info necessary for diagnosis/treatment
When does the state physician-patient privilege not apply? (exceptions, waivers)
- patient puts their physical condition in issue
- physician assistance sought to aid wrongdoing
- relevant to breach of duty issue between them - e.g. med mal
- contract
- federal law applies
When does psychotherapist/social worker privilege apply?
When federal law applies, privilege applies in similar way as atty-client privilege (confidential comms, purpose re professional services).
Does not apply when patient puts mental state in issue - e.g. emotional damages, insanity defense.
What are the two privileges relating to marriage?
- spousal immunity to testify
- confidential marriage comms
What is the spousal testimonial privilege and when does it apply?
Only applies in criminal cases. Married person may choose to refuse to be called as witness against spouse when spouse is D in criminal case. Must be married at time of trial.
What is the privilege for confidential marriage comms and when does it apply?
Applies in any civil or criminal case. Comms made between spouses during the marriage are privileged, and either spouse can prevent comms made from being disclosed. Only need to be married at time comms was made NOT at trial.
Does not cover threats, abusive language nor comms made in presence of third party.
In what instances do neither of the spousal privileges apply?
- comms in furtherance of joint crime
- legal actions between spouses
- cases in which spouse is charged with crime against testifying spouse or child
