Privileges

Question 1

Federal Court:

Choice of law for privilege

(& other substantive laws of evidence)

Answer 1

MBE: Depends on type of subject matter jurisdiction

1. For cases ARISING UNDER federal law,
   
   1. “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”
   2. (Federal law of privileges)
2. For DIVERSITY cases where 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

Question 2

Federal Court:

Types of privilege recognized

Answer 2

1. Attorney-client
2. Psychotherapist-patient
3. Marital
4. Fifth Amendment

NOT

• accountant-client
• doctor-patient
• professional journalist

Question 3

Who & how may waive privilege?

Answer 3

Who:

1. Only person who holds privilege
2. If joint privilege –> both must waive

How:

1. Failure to object when privileged testimony is offered
2. Disclosing privileged info to known person outside the scope of privilege

Question 4

Attorney-client privilege:

Elements

Answer 4

1. _Confidential communication_s Intended to be confi by client (i.e no 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
2. 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) Client inlcuded person seeking to BECOME a client
3. During professional, legal consultation
   
   • Legal advice, NOT social/business
4. Unless waived by client
5. Or an exception applies f
   *

Question 5

Privilege:

Doctor-patient

Answer 5

FRE: psychotherapist ONLY

States: by statute

NY/General Elements:

1. Confidential communication/info
   
   • Confi info: no 3rd parties present
2. Acquired by doctor/psychotherapist
   
   • Psychotherapist = 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)
3. For purposes of medical diagnosis/treatment
   
   • Medical diagnosis includes litigation Info necessary for treatment
   • (If just for litigation, privilege = atty-client if the info was necess’y for legal advice)

EXCEPTION: If patient expressly or impliedly puts mental or physical state at issue:

• E.g. π is suing for damages in personal injury case;
• Insanity defense- must AFFIRMATIVELY put condition at issue
  
  • (i.e. simple denial that physical or mental condition caused event is NOT putting condition at issue)

Question 6

Marital communication privilege:

When protect:

When is it available?

Answer 6

FRE/NY:

Holder = BOTH spouses (both must waive)

In ANY type of case, a spouse is not REQUIRED, and is NOT allowed in absence of consent by other spouse, to disclose :

• confidential communication
• made between the spouses
• during the marriage made in reliance upon the intimacy of the marital relationship

Question 7

Marital communication privilege:

3 Exceptions:

Answer 7

NO privilege IF…

1. communications or acts are in furtherance of a jointly perpetrated furture crime or fraud
2. Communications are destructive of family unit
   
   • (e.g. spousal/child abuse)
3. Civil litigation b/t the spouses
   
   • Policy: To encourage open commn during the marriage

Question 8

Spousal Immunity:

When available?

[NY distinction}

Answer 8

NY DISTINCTION: This privilege is NOT available in NY

Federal:

In CRIMINAL cases where spouse = D, a spouse CANNOT be compelled to testify ABOUT anything against the ∆ spouse

Holder = Witness-spouse is holder of privilege (can choose to waive)

EXCEPTIONS: NO privilege IF…

1. the couple divorces before trial communications
2. acts are in furtherance of a jointly perpetrated furture crime or fraud
3. Acts are destructive of family unit (e.g. spousal/child abuse)
4. Civil litigation between spouses

Question 9

5th Amendment Privilege

Answer 9

= protection against self-incrimination that would result in CRIMINAL liability

• Anyone can invoke
• Criminal D can refuse to take witness stand

Question 10

Work-Product Doctrine:

Answer 10

Applies to work by attorney in preparation for trial

**Can overcome IF:

Question 11

Attorney-client privielge:

Corporate Clients

Answer 11

If corporation = client, employee’s statement to atty’ are privileged IF were authorized/directed by the corporation

Question 12

Attorney-client Privilege:

Waiver- how?

Answer 12

Only client can waive b/c client holds privilege; survives A/C relationship and death

1. Voluntary waiver
2. Inadvertent waiver?

• will NOT result in waiver IF:
  
  • i) was unintentional
  • ii) client took reasonable steps to prevent
  • • iii) client took reaosnable steps to remedy

3.Subject matter waiver:

• voluntary waiver of privilege as to SOME communication will ALSO waive the privileg as to the OTHER communication if:
  
  • (i) partial disclosure is intentional;
  • (ii) the disclosed and undisclosed commn concern the same subject matter;
  • • (iii) fairness req’s that the disclosed and disclosed info be considered together

Question 13

Attorney-client privilege:

3 Exceptions

Answer 13

1. Advice sought in furtherance of future crime/fraud
   * (e.g. “Help me defraud these ppl”)
2. Client puts legal advice at issue
   * ex: in tax fraud, client’s defense = listened to attorney
3. Dispute betw. atty and client
   * ex: legal malpractice, unapid fees