Testimonial Privileges

Question 1

Testimonial exam approach

Answer 1

1. Determine whether federal or state privilege law applies to a federal case
   -Arose under federal substantive law is governed by federal common law
   -Based on diversity jurisdiction is governed by state privilege law

Question 2

Federal common law privileges

Answer 2

-Attorney-client privilege
-Spousal immunity
-Conditional marital communications
-Psychotherapist/social worker-client privilege (exception: patient puts mental condition at issue)
-Clergy-penitent privilege
-Governmental privilege

Question 3

State privileges not recognized by federal common law

Answer 3

-Physician-patient
-Accountant-client
-Professional journalist

Question 4

Attorney-client privilege and work product

Answer 4

A confidential communication made between a client and the professional (or representatives of either) made during a professional consultation
-Corporations are clients meaning authorized employee statements to an attorney are protected
-Privilege is personal to the holder
-Communication must be confidential (knowingly disclosure to third party breaks the privilege, but not by eavesdropper, joint clients, or parent)
-Waivers include: (1) failure to assert privilege; (2) voluntary disclosure; or (3) contactual waiver

Attorney work product: documents prepared in anticipation of litigation are not subject to discovery except in cases of necessity
-Must show substantial need and undue hardship

Question 5

Attorney-client privilege exceptions

Answer 5

1. Fraud - attorney’s services were sought to aid in the planning or commission of a crime or fraud
2. Self-Defense - where client puts the legal services at issue in the case
3. Breach of Duty - communication relevant to a breach of duty in a dispute between the attorney and the client
4. Deceased client - regarding a communication relevant to an issue between parties claiming through the same deceased client

Question 6

Physician-patient privilege (state only)

Answer 6

Confidential information acquired by physician is privileged when:
1. Professional relationship between the physician and patient for the purposes of medical treatment
2. Information was acquired for the purpose of diagnosis or treatment; or
3. Information was necessary for diagnosis or treatment

-Privilege belongs to patient but may be asserted by physician if patient is not available for trial
-Only applicable in diversity actions
-Does NOT cover medical examination at direction of attorney (covered by ACP)

Question 7

Physician-patient privilege exceptions

Answer 7

1. Patient puts their physical condition at issue (personal injury case)
2. Physician’s assistance was sought to aid wrongdoing
3. Breach of duty in dispute between patient and physician
4. Patient waived by contract (i.e., insurance)
5. federal common law applies (no diversity action)

Question 8

Spousal Immunity (criminal cases only)

Answer 8

A married person whose spouse is a criminal defendant may not be compelled to testify
-What matters: whether spouses are married at time of trial
-Privilege belongs to criminal defendant (witness-spouse)

Question 9

Confidential Marital Communications (civil and criminal cases)

Answer 9

Protects private communications between spouses
-What matters: privilege survives the marriage, but only covers statements made during marriage
-Both spouses hold the privilege to prevent the other from disclosing
-Threats, abusive language, or communications made in known presence of third party are not privileged