Privileges Flashcards
What are the 5 elements of Atty-client Privilege?
- Confidential communications
Intended to be confi by client (i.eno listeners)
Joint Client Rule: If ≥ 2 clients with common rep, their comm’n is protected as to OUTSIDERS, but NOT protected as to each other
Communication (info exchange)is protected,NOT physical evid., knowledge or EXISTING docs
E.g. Report prepared by defendant FOR litigation is confidential
- Between attorney and client
Atty: member of bar or one a client REASONABLY believes is atty
Incl. necessary reps for svcs (e.g. legal secretary); person seeking to BECOME a client
- During professional, legal consultation
Legal advice, NOT social/business
- Unless waived by client
Only client can waive b/c client holds privilege; survives A/C relationship and death
Subject matter waiver: a voluntary waiver of privilege as to SOME communication will ALSO waive the privilege as to the OTHER communication if: (i) partial disclosure is intentional; (ii) the disclosed and undisclosed commn concern the same subject matter; AND (iii) fairness req’s that the disclosed and disclosed info be considered together
Inadvertent waiver: Will NOT waive the privilege SO LONG AS the privilege-holder: (i) took reasonable steps to prevent the disclosure; AND (ii) takes steps to correct the error
- Or an exception applies
(i) future crime/fraud (e.g. “Help me defraud these ppl”)
(ii) legal advice at issue OR
(iii) dispute b/t atty and client
What are the 3 elementsand 1 exception to the doctor-patient privilege?
- Confidential communication/info
Confi info: no 3rd parties present
- Acquired by doctor
Doctor includes certified mental health professional(including pyschotherapists)
NOTE: if a federal case based on ARISING UNDER jx, privilege ONLY exists for psychotherapists (no ordinary drs that treat physical symptoms)
- Purposes of medical diagnosis/treatment
Medical diagnosis includes litigation
Info necessary for treatment
NOT qualification for insurance
EXCEPTION:
1) If patient expressly or impliedly puts mental or physical state at issue:
E.g. π is suing for damages in personal injury case; ∆ in asserting insanity defense
Δ must AFFIRMATIVELY put condition at issue (i.e. simple denial that physical or mental condition caused event is NOT putting condition at issue)
What privilege rules apply infederal ct?
1) ARISING UNDER cases = “Privileges are governed by the principals of the (federal) COMMON LAW as they may be interpreted by the fed cts in the light of reason/experience”
These are the basic privilege rules from the MBE
2) DIVERSITY cases = STATE SUBSTANTIVE LAW applies (Erie), apply STATE law for (i) privilege; (ii) competency (e.g. Dead Man Statute); AND (iii) burdens of proof/presumptions
Outside of these 3 exceptions, APPLY Federal Rules of Evidence
What is thespousal communication privilege AND when is it available?
When: ANY type of case
Rule: Spouse is not REQUIRED, and is NOT allowed in absence of consent by other spouse, to disclose confi commn b/t the spouses made in reliance upon the intimacy of the marital relationship
BOTH spouses are holders of privilege; disclosure requires consent by BOTH spouses
EXCEPTIONS:
(i) in furtherance of a jointly perpetrated future crime or fraud
(ii) destructive of family unit (e.g. spousal/child abuse)
(iii) civil litigation b/t the spouses
Policy: To encourage open commn during the marriage
What is spousal immunity AND when is it available?
NOTE: NY distinction
When: Federal CRIMINAL cases
Rule: Spouse CANNOT be compelled to testify ABOUT anything against the ∆ spouse
Witness/spouse is holder of privilege, SO they can CHOOSE to testify against ∆ spouse
EXCEPTIONS: NO privilege IF…
(i) couple divorces before trial
(ii) communications or acts are in furtherance of a jointly perpetrated future crime or fraud
(iii) communications are destructive of family unit (e.g. spousal/child abuse)
Policy: To protect harmony of existing marriage
NY DISTINCTION: This privilege is NOT available in NY
