Privileges Flashcards
Federal or State Law in Federal Court?
If under federal substantive law, use federal common law privileges.
If under diversity, use state law privileges.
Federal Privileges
Attorney-Client
Spousal
Marital Communications
Psych/Social Worker-Patient
Clergy-Penitent
Gov
Confidential
Shown or presumed to have been made in confident; not intended to be disclosed to third parties
-Note: Eavesdroppers won’t destroy confidence
Waiver
- Failure to claim
- Voluntary disclosure by holder
- Waiver by contract
Attorney-Client
A communication made in confidence by a client to counsel for the purpose of seeking legal counsel.
-Client must be seeking professional services of attorney at time of communication
-Communication via agents ok
-Corporate client = anyone authorized/directed by corp. to talk to attorney
-Does not apply to underlying facts, pre-existing documents, or physical evidence
-Joint clients destroys privilege against each other
-Does not apply to crime-fraud furtherance or in dispute between attorney-client
-Only client can waive; attorney can usually claim
Physician-Patient
STATE ONLY
Info was obtained for and necessary for purpose of diagnosis/treatment.
-Does not apply if patient puts physical condition in issue, if sought to aid in wrongdoing, med malpractice case.
Psych/Social Worker-Patient
Purpose of communication must have been to facilitate professional services.
-Does not apply if patient puts mental condition at issue.
Spousal Immunity
Married person cannot be compelled (but can choose) to testify against spouse in criminal proceeding.
Must be married at time of trial.
Marital Communications
Either spouse can refuse to disclose (or prevent other from disclosing) communications made during a valid marriage.
Must be married at time of communication.
Clergy-Penitent
Only if communication made to clergy in his capacity as a spiritual adviser.
Gov
Official info not open to the public or to protect ID of an informer.
