§ 38.13 PROCEDURAL ISSUES

• Jurisdiction: North Carolina

§ 38.13. PROCEDURAL ISSUES

As with all privileges, the burden of persuasion generally rests with the person asserting the privilege.¹⁴⁰ In United States v. Zolin,¹⁴¹ the Supreme Court held that the applicability of the crime-fraud exception can be resolved by an in camera inspection of the allegedly privileged material. Other procedural aspects are discussed in § 37.05 above.

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Notes:

^[140] See United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 2009) ("As the party asserting the privilege, Ruehle was obliged by federal law to establish the privileged nature of the communications and, if necessary, to segregate the privileged information from the non-privileged information."); In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000); In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998) ("It is settled law that the party claiming the privilege bears the burden of proving that the communications are protected."); In re Grand Jury Investigation No. 83-2-35 (Durant), 723 F.2d 447, 450 (6th Cir. 1983) ("The burden of establishing the existence of the privilege rests with the person asserting it.").

^[141] 491 U.S. 554...