Privileges

Question 1

Does prop 8 apply to privileges?

Answer 1

No, privileges are exempt

Question 2

Applicable law

Answer 2

1. the federal rules have no specific privilege provision, and federal courts recognize common law privileges:
   i. attorney-client privilege
   ii. spousal immunity
   iii. confidential marital communications
   iv. psycotherapist/social worker privilege
   v. clergy-penitent privilege
2. in diversity cases, State common law governs (Federal court but CA privilege law)
3. party seeking invoke the privilege bears the burden of showing that it applies

Question 3

attorney client privileges

Answer 3

1. death: CA: privilege ends once estate of dead client is distributed and executor of estate is discharged
2. employee communications: no difference in practice
   i. FREv: employee communications privileged if instructed + matters in scope of employment + understands purpose is for legal advice
   ii. CA:
   a. employee is the natural person to speak to the lawyer on behalf of the corporation in the matter (ex. in house counsel), or
   b. employee/agent did act for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened (instructed + own act)
   iii. in both, there is no attorney client privilege for communications from corporate employees who are mere witnesses, meaning they do not speak for the company
3. exceptions:
   i. both: crime-fraud exception, common interest exception, lawyer-client breach of duty
   ii. (important) CA additional exception: privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm

Question 4

Interspousal privilege: Trammel adverse testimony

Answer 4

1. FREv:
   i. criminal cases only
   ii. right to not testify
2. CA:
   i. applies in criminal and civil cases
   ii. the spouse has a privilege to not be called to the witness stand (i.e. right to not even have to assert the privilege, not just to not testify)

Question 5

Interspousal privilege: Confidential communications privilege

Answer 5

1. same as FREv.

Question 6

Psycotherapist- patient privilege

Answer 6

1. exceptions to the privilege:
   i. both: patient puts own condition in issue, crime-fraud exception, relates to physician-patient dispute
   ii. (important) CA additional exception: does not apply in criminal cases

Question 7

Dr.- Patient privilege

Answer 7

1. does not exist in Federal law, but Federal court may have to apply it in diversity cases
2. exceptions to the privilege:
   i. both: patient puts own condition in issue, crime-fraud exception, relates to physician-patient dispute
   ii. (important) CA additional exception: does not apply in criminal cases nor for information that the doctor is required to report (ex. gunshot wounds)

Question 8

Other California privileges

Answer 8

1. privilege for confidential counselor-victim communications in sexual assault or domestic violence cases
2. clergy privilege: works like attorney-client privilege
3. no journalist privileges, but journalists have immunity from contempt of court for refusing to disclose sources