Privileges Flashcards
Intro to privileges
a. Federal law on privileges only speaks to discovery, not testifying at trial, etc.
i. So for state law claims—there is no federal law on point, so follow these steps:
ii. In federal court action ARISING UNDER FEDERAL SUBSTANTIVE LAW: privileges are governed by the federal common law (what’s covered in the lecture)
iii. In federal court action based on diversity jurisdiction, where court is applying state substantive law, the federal court must apply law of privilege OF THE STATE whose substantive law is applicable
1. Basically, questions of privileges not having to do with discovery are SUBSTANTIVE QUESTIONS
a. They are outcome determinative, may lead to forum shopping, etc.
2. In diversity, federal courts also apply STATE LAW ON COMPETENCY (e.g. dead man’s statutes) AND STATE LAW ON burden of proof/ presumptions
Attorney client privileges
a. Rational: to encourage client to speak openly
b. Elements: applies to
i. Confidential communications: Client must have reasonable expectation of confidentiality (no privilege if 3rd party is listening, or if client asks attorney to disclose to 3rd party)
- Only extends to the things client told the attorney, not just knowledge of the facts.
- Doesn’t extend to physical evidence like cell phones – cannot immunize physical evidence just by giving it to attorney
ii. Joint client rule: if 2 or more clients with common interest consult the same attorney, their communication with counsel regarding the common interest are privileged against 3rd party.
1. But if they later have a dispute, privilege doesn’t apply between them
Who is an attorney and who is a client for attorney client privilege
iii. Attorney—member of the bar or person that client reasonably believes is member of the bar.
1. Representative of the attorney—any agent reasonably necessary to facilitate provison of legal services (like accountant helping attorney).
iv. Client—includes person seeking to become client
1. Also applies to initial exploratory communications even though no k of retainer was reached.
a. Would be client
v. Professional legal consultation—main purpose of convo must be to get legal services
Waiver of attorney client privilege
- Voluntary – only client has power ot waive privilege. After client death, privilege continues and only estate can waive it
- Subject matter waiver: voluntary waiver of privilege as to SOME communications. Applies if
a. Partial disclosure is intentional
b. The disclosed and undisclosed communications concern the same subject matter
AND
c. Fairness requires the disclosed and undisclosed communications be considered together.
i. Basically if you disclose some of the docs voluntarily, may be obligated to disclose ALL of the docs if they concern the same subject matter, to avoid letting ppl from strategically garbling. - Inadvertent waiver: does not wiave privilege so long as privilege-holder (accidentally including document in file)
a. Took reasonable steps to prevent the disclosure
AND
b. Took reasonable steps to correct the error
Exceptions to attorney client privilege
a. Future crime or fraud—client tells lawyer in a way tohelp client commit future crime or fraud
b. Client puts legal advice in issue: for ex. tax fraud prosecution, and ∆ says he was just following attorney advice. We need to se that advice
c. Attorney client dispute: for ex. client doesn’t pay bill, or client suing attorney for malpractice
Dr. patient privilege
a. Usually through state statute. Encourages candor by patients
b. Elements. Applies to:
i. Confidential communication or info acquired by dr. from patient for purpose of diagnosis or treatment of medical condition.
ii. ALSO applies to shrinks.
1. Includes anyone licensed to treat mental/ emotional disorders. Like social workers/psychologists.
iii. Federal law distinction: in federal court actions based solely on federal substantive law
1. Privilege exists ONLY for psychotherapy.
2. No privilege in federal court based on communications with Dr. with regard to psychical conditions.
3. Supreme Court of the United States says psychotherapy is different than doctors.
i. Dr. privilege only applies if no one else is in the room
ii. Dr privilege only applies if it’s related to medical treatment or diagnosis.
Exceptions to dr. patient privilege
i. If patient expressly or impliedly puts physical or mental condition in issue. E.g π is seeking damages for personal or mental injury, or insanity defense.
ii. The physician’s assistance was sought to aid wrongdoing
iii. The communication is relevant to an issue of a breach of duty in a dispute between the doctor and patient
iv. The patient agrees by k (like insurance policy) to waive the privilege
Clergy, accountant, journalist, governmental privilege
D. Clergy or accountant privilege – privilege similar to attorney client privilege
E. Professional journalist privilege – no constitution right to journalist to protect his source of info, so privilege is limited to individual state statutes
F. Governmental privilege—official info not otherwise open to the public or the identity of an informer may be protected by a privilege. No privilege if the id of the informer is voluntarily disclosed by a holder of the privilege
exclusion and sequestration of witness
– upon party request the judge MUST order witness exclusion from courtroom until it is time for them to take the stand. Judge can also do on his own motion. Jude may not exclude
a. A party or a designated officer or an employee of a party
b. Person whose presence is essential to presentation of party claim or defense
c. Or a person statutorily authorized to be present- like victim
Witnesses called or examined by the court
court may examine party witness or call its own. Each party may cross-examination such witness.
a. Party may object to court examination/ calling of a witness either at that time or he next available opportunity when jury isn’t present
the two spousal privileges
i. Two privileges designed to protect the marriage, operating at different points in time.
ii. Trammel adverse testimonial privilege– spousal privilege against adverse spousal testimony
iii. Confidential communication privilege: protects confidential communications during the marriage.
Trammel adverse testimony spousal privilege
- Person married to a criminal ∆ doesn’t have to give adverse testimony (doesn’t have to testify about anything NOR in any criminal proceeding– even if spouse is not the ∆.
b. Privilege only applies to a spouse’s testimony, not hearsay where spouse is a declarant - Requirements:
a. Only criminal proceedings
b. Must have a VALID MARRIAGE AT THE TIME OF trial (court may consider evidence of de facto separation) - Privilege holder:
a. Testifying spouse holds the privilege, not the ∆ spouse.
b. So the non-∆ spouse may testify if they want to– but only about things that are not communications. Because both the ∆ spouse and the testifying spouse hold the “confidential communications spousal privilege:
c. government can still incentivize or coerce a spouse to testify (ex. part of plea deal) - Exceptions:
a. Sham marriage exception
i. Majority: no privilege if the marriage is a sham, which means they got married in order to invoke the adverse testimonial privilege
ii. Majority: yes there’s a privilege even if the act in question predates the marriage
Minority: no privilege if the act in question predated the marriage
b. Family exception: privilege doesn’t apply to communications pertaining to child or domestic violence
i. The witness-spouse MUST testify if abuse is against her
Confidential communications spousal privilege
Any confidential statement made between spouses during the existence of a legal marriage is privileged
requirements:
1) must be a communication 2) must be confidential 3) made during the marriage
i. destroyed by known presence of 3rd party able to understand, including couple’s child
ii. courts wont look into marriage quality, but may look at objective information that marriage isn’t viable (like a de facto separation)
- Privilege holder
a. Privilege belongs to both spouses, so BOTH must waive before the privilege is lifted. - Limits
a. Crime-fraud exception: privilege doesn’t apply to marital communications made for purpose of furthering a crime
b. Child exception: doesn’t apply to child or domestic violence.
Compare trammel privilege and confidential communications privilege
- This means the spouse of a civil ∆ may be called on the stand—just can’t be made to talk about communications during the marriage
a. But the spouse of a criminal ∆ doesn’t even have to come to the stand
b. AND the communications spousal privilege is held by both parties whereas trammel is not
i. So criminal ∆ may still stop his spouse from testifying about COMMUNICATIONS on the stand made during a viable, still-existing marriage, but can’t completely stop his spouse from getting on the stand and testifying about non-communications
