Privileges

Question 1

Structure of Privileges

Answer 1

1. proponent of privilege (one objecting to evidence) must establish elements of priilge
2. opponent of privilege (propronet of evidence) must:

• negate of the elements
• show privilege was waived
• show exception applies

Question 2

Elements of Confidentiality of Privilge

Answer 2

• proponent of privlige must establish elements besides confidentialtiy
• set up between 2 people
• confidentiality- intended to be disclosed in confidence (confidentiality presumed)

Question 3

Conscious Waiver

Answer 3

Client knowingly waives the privilege

Question 4

Waiver by consent

Answer 4

holder consents to someone else to disclose

Question 5

Negligent Waiver

Answer 5

failure to oject when would have

Question 6

3rd party waiver

Answer 6

merelty acknoweldging the existence of a confidential communication or disclosing hte topic of a confidential communication doesnt waive it

limitations: 3rd party reasonably needed for communication (paralegal, secretary, nurse)

Question 7

double privilege

Answer 7

disclosing privilged communication in context of another privileged communicaiton doesnt destroy the privilege

Question 8

eavesdropper doctrine

Answer 8

Will be protected as long as client reaosnably believed communication was confidential

Question 9

Attorney/Client Privilege

Answer 9

designated to encourage frank discussion and good advice

• client is the holder of privilge, but attornye may be obligated to invoke
• protects communications not facts
• doesnt protect evidence given to attorney

Question 10

Attorney/Client Privilege Elements

Answer 10

• communication made between client and attorney
• in the course of the attorney client relationship
• in confidence (presumed once first 2 established)

Question 11

Attorney/Client Exceptions

Answer 11

• Crime fraud exception
  
  • asked lawyer ot help them with crime or fraud
• dead guy exceptions
• breach of attorney client relationships
  
  • (malpracitce/nonpayment)
• litigation between former clients
• reasonably believes necessary to prevent death/seriou bodily harm

Question 12

Work Product Doctrine

Answer 12

• attorney holds the privilege
• in place ot protect lawyer
• client can claim work product privilge if the attorney is not present to claim it

Question 13

Work Product Doctrine: Absolute Privilege

Answer 13

Any writing that reflects an attorneys impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances

Question 14

Work Product Doctrine: Qualified Privilege

Answer 14

Other matters constituting an attorneys work product is not discoverable unless the court determine that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice

federal: limited to litigation

CA: not limited to litigation

Question 15

Covered by work product doctrine

Answer 15

• susbtance of exptected testimony
• notes of wintess interviews
• report of non-testifying expert
• non-testifying experts opinion
• report of designated expert (withdrawn before deposed)

Question 16

Not covered by work product doctrine

Answer 16

• identity
• location of witnesses
• verbatim witness statmeents
• report testifying expert
• substance of testifying experts opinion
• report of designated expert

Question 17

Federal 504 Waiver

Answer 17

• If diclsoure is intentional, waiver of privilege extends to undisclosed communication fi:
  
  • the disclosed and undisclosed communication or infor concern the same subject matter
  • then out of fairness hsould be considered together
• if disclosure is inadvertent, there is no waiver if
  
  • holder took reasonable steps to prevent disclosure
  • holder promptly took reasonable steps

Question 18

Marital Communications

Answer 18

1. communication made between spouses
2. made during the maritcal relationship
3. in confidence (presumed once first 2 establisehd)

• must be married at time of communication dont to be married at time of testimony
• no privilge for uncommunicated writings or acts observed
• both sposues are holders of privilge

one cant waive on behalfs of the other

Question 19

Marital Communications Exceptions

Answer 19

1. Crime Fraud Exception
   
   1. asking the spouse to cover the crime or conceal crime or fraud
2. proceeding for benefit of spouse, child (custody etc.)
3. dead guy exception
   
   1. through a dead spounse before he died he said what he wanted
4. Litigation between spouses (divorce)
5. Crime against perons, property of other sposue or kids
6. cirminal defendant

Question 20

Spousal Privilege

Answer 20

1. spouse has privilge not to be called by adverse party where other sposue is a party
2. spouse has privilge not to testify against ohter spouse regardless whether the spouse is a party
   
   1. cant reufse to take stand
   2. can refuse to answer questions that are adverse to spouse

Question 21

Spousal Privilge (General)

Answer 21

Testifying spouse is holder of spousal privilge

if spouse wants to testify against another spouse the can

Question 22

Spousal Privilege: Key Issues

Answer 22

Whether spouses are married at time testimony was sought

spousal purpose: to avoid the disruption to an existing relationship from one spouse testifying to another spouse

if privilege applies, can refuse to testify as to matter that occurred during or before marriage whether observatino or communicationconfidential or not

Question 23

Waiver: Spousal Privilege (#1)

Answer 23

1st privilege gives W right no to tesify if called by adverse party, but not if called by spouse

• called by spouse, privilge to tesifty is waived, W is subject to cross, and must give adverse tests.
• grand jury doesnt count

Question 24

Waiver (Spousal Privilege #2)

Answer 24

Where Spouse isnt a party, If W is called and testifies favorable regarding spouse, she has not waived right not to testify adversely to spouse

W can testify adversly to spouse and waive right

Question 25

Key Exceptions

Answer 25

1. Proceeding ofr benefit of spouse, child (commitment, competency, removal of child from home)
2. litigation between spouses
3. crime against person, property of other spouse, kids
4. lawsuit is brought for benefit of sposue (sues form community proprerty)
5. marry the wtiness exception
   
   1. criminal act before marriage and W knew before marriage of arrest of charge