Privileges

• Author: Gordon P. Cleary
• Pages: 519-564

7-1

7. PRIVILEGES

General & Waiver

§700 In General

§701 Application of State Law

§710 Waiver

§711 In Court

§712 Out of Court

§712 .1 Federal Rule of Evidence 502: Limitations on Waiver of Attorney-Client and Work Product Privileges

§712.2 Potential Waiver of Opinion Work Product Privilege and Attorney-Client Privilege When

Privileged Materials Are Shown to a Testifying Expert Witness

§713 Practice Pointers

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7-3 GENERAL & WAIVER §701

§700 In General

The rules concerning privileges are based on a policy decision that certain evidence should be excluded, even

though it is reliable, probative and relevant. The courts are willing to forego the reliable, probative and relevant evi-

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various foundational elements to either assert various privileges or to demonstrate that the privileges have been waived.

In examining privileges, the following points must be addressed:

• Is the proceeding one in which a privilege applies? (Some privileges apply only in certain cases or have limited scope.)

• Who is the holder of the privilege?

• What is the nature of the privilege, i.e., does the person have the right to refuse to disclose the information;

may he prohibit another party from making disclosure; may he preclude his opponent from commenting on

his right to invoke the privilege)?

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• Has there been a waiver of the privilege?

• Is there any particular exception or circumstance which would require that the privilege be defeated?

Elements

Following are the various foundational elements to establish a privilege:

• The privilege applies to the particular proceeding;

• The person claiming the privilege has a right to assert the privilege;

• The person claiming the privilege is the holder of the privilege;

• The information sought is covered by the particular privilege:

— There was a communication;

 

— It took place only between those parties covered by the privilege;

— It was necessary to the maintenance of the relationship;

— There was no waiver.

Tactics

When dealing with the privileges in general, make sure that the court understands the following:

• The nature of the privilege (attorney-client, husband-wife, priest-penitent, physician-client, etc.);

• Once the nature of the privilege is explained, insure that the claimant is a proper holder of the privilege and

can seek its protection;

• Demonstrate to the court that the circumstances surrounding the communication were consistent with the

privilege (it was not meant to be disclosed to others; it was made for the purpose of legal advice, etc.);

• Demonstrate that there was no waiver of the privilege by disclosing the communication to third parties or by



Cases

Trammel v. United States, 445 U.S. 40 (1980). Testimonial privileges contravene the fundamental principle that the

public has a right to every man’s evidence. Therefore, they must be strictly construed and accepted only to the

very limited extent that permitting a refusal to testify or excluding the relevant evidence has a public good which

transcends the normal predominant principle of utilizing all rational means for ascertainment of truth.

United States v. Holmes, 594 F.2d 1167 (8th Cir. 1979), cert denied, 444 US. 873 (1979). The federal law of privileges

will control a federal criminal case.

Blackledge v. Martin Kebey Construction Co., 542 F.2d 474 (8th Cir. 1976). Under Federal Rule 501, the privilege

of a witness, person, government, state or political subdivision shall be determined in accordance with state law.

§701 Application of State Law

Rule 501 of the Federal Rules of Evidence provides that any state evidence privilege: