V: Privileges adn Other Policy Exclusions Flashcards
Confidential communications
Necessary for a privilege to apply
If overheard privilege destroyed unless: (i) no knowledge of 3rd party presence; or (ii) third party is necessary to assist in the communication.
Privilege waived if privilege holder (i) fails to assert it timely; (ii) voluntarily discloses communication, or (iii) contractually waives it in advance.
Spousal immunity
Married person can’t be compelled to testify against his spouse in any criminal proceeding regardless who D is
Witness spouse holds privilege in federal court and maj. of states. NC follows this rule.
Applies to testimony about events before/during marriage; privilege expires upon divorce or annulment.
Doesn’t apply if 1 spouse sues another or spouse is charged w/ crime against the other or their children
Confidential marital communications
Spousal communication during marriage is privileged when made in reliance on sanctity of marriage
Maj. both spouses hold privilege in civil and criminal cases. NC follows this rule.
Begins when married and continues indefinitely
Doesn’t apply if 1 spouse sues another or spouse is charged w/ crime against the other or their children
Attorney-client privilege
Confidential communication between client & attorney when client seeking legal advice or representation.
Privilege exists until waived
Federal law extends privilege to communications by a non-control-group employee (i) about matters w/ in employees corporate duties (ii) made for the purpose of securing legal advice for the corporate client.
NC hasn’t decided if the Upjohn test or “control group” test for who is entitled
Exceptions for communications:
Made to enable or aid the commission of what client knew or should have known was a crime/fraud.
Relevant to dispute between attorney and client (malpractice)
Relevant to dispute between parties who claim through the same deceased client
Between former co-clients who are now adverse to each other
Work product
Not “communication” but protected unless party seeking disclosure (i) demonstrates substantial need and (ii) cannot obtain the info by any other means w/out undue hardship.
NC: If such materials are accidentally produced, the disclosing party may assert the privilege by notifying the recipient, in writing if possible, of their claim of privilege and basis for it.
The party receiving the notice must promptly return, sequester, or destroy the evidence.
If the party has disclosed info, it must take reasonable steps to retrieve it.
The party receiving notice may present the info to the court under seal for a determination of whether the claim of privilege is valid.
NC Attorney-Client Privilege
In NC if 2 ore more people hire the same attorney, communications involving more than 1 client remain confidential.
Physician-Patient privilege
Statement privileged so long as made for purpose of obtaining medical tx
Pt holds privilege
Privilege doesn’t exist if: infor acquired for reasons other than tx, Pt physical condition at issue, statement is part of a crime, dispute exists between pt and physician, pt contractually waives privilege, Federal question case.
NC a judge may compel disclosure of protected communication if disclosure is necessary for the proper administration of justice.
Other privileges
Clergy-penitent
NC recognizes so long as: made to clergy member in professional capacity, necessary to discharge her duties, made for the purpose of seeking spiritual counsel and advice.
Accountant-client
Professional journalist- no federal privilege regarding source
NC: qualified privilege against disclosure of confidential or non-confidential info obtained or prepared while acting in her professional capacity. May be overcome by establishing by a “greater weight of the evidence” that the information sought: is relevant and material to the proper administration of the legal proceeding, cannot be obtained from alternate sources, and is essential to a claim or defense of the person seeking the evidence.
A journalist must be given notice of any motion to overcome the privilege, a hearing must be held on the motion, and the court must issue clear and specific findings of the showing made by the party to compel production. The privilege does not apply to info obtained as a result of the journalists eyewitness observations of criminal or tortious conduct.
Government privilege: privileged against disclosing informant’s id in a criminal case and communication of official info by or to public officials
Psychotherapist-patient privilege
Pt holds the privilege, but doesn’t exist if pt mental condition is at issue, statement was result of state ordered exam or case is commitment proceeding against t.
NC: extends the privilege to confidential communications w/ license counselors, marital and family therapists, and social workers.
The privilege doesn’t apply to evidence relating to child abuse or neglect or the abuse or neglect of a disabled child.
A judge may compel disclosure of protected communications if it is necessary for the proper administration of justice.
Subsequent remedial measures
Not admissible to prove neg, culpable conduct, defective product/design, or need for warning instruction.
Admissible for other purposes such as impeachment, ownership/control, or feasibility of precautionary measures.
Compromise offers and negotiations
Not admissible by either party to prove/disprove the validity or amount of disputed claim, or for impeachment by prior inconsistent statement or contradiction.
Admissible to prove bias or prejudice of witness, negate claim of undue delay, or prove obstruction of criminal investigation/prosecution
Admissible in a subsequent criminal case if made during compromise negotiations w/ gov. agency during its regulatory, investigative, or enforcement authority.
This exception does not apply in NC.
Evidence of payment, offers, or promise to pay medical expenses
Not admissible to prove liability for the injury, but statements that accompany the payment, offer, or promise to pay are admissible.
NC: evidence offered to prove past medical expenses is limited to: amounts already paid, regardless of the source (individual/ins co.) and amounts necessary to satisfy bills already incurred, but not yet paid. Parties are not required to seek reduction of their medical bills.
Plea negotiations
W/drawn guilty please, please of no contest, and statements made while negotiating plea bargain or during plea proceeding are not admissible. Except:
another statement made during the same plea/negotiation has already been admitted and fairness requires that the statement in question also be admitted; also admissible in subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present.
NC Apologies and offers to assist
Statements by healthcare providers are not admissible to prove negligence or culpable conduct by a provide:
an apology for adverse outcome
An offer to perform corrective or remedial tx or actions or
An offer of gratuitous acts to assist the affected person
Liability insurance
Not admissible to prove whether a person acted negligently or wrongfully.
Admissible to prove agency, ownership/control, or witness bias/prejudice.
