AuthorGordon P. Cleary
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
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 reli-
able, probative and relevant evidence to maintain
certain confidential relationships covered by the
privileges. This chapter focuses on and discusses
various foundational elements to either assert vari-
ous 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 cer-
tain 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 pre-
clude his opponent from commenting on his
right to invoke the privilege)?
What part of the information is privileged (is
the communication “confidential”)?
Has there been a waiver of the privilege?
• Is there any particular exception or circum-
stance which would require that the privilege
be defeated?
Following are the various foundational ele-
ments to establish a privilege:
• The privilege applies to the particular pro-
The person claiming the privilege has a right
to assert the privilege;
The person claiming the privilege is the hold-
er of the privilege;
The information sought is covered by the
particular privilege:
There was a communication;
It was confidential;
It took place only between those parties
covered by the privilege;
— It was necessary to the maintenance of
the relationship;
There was no waiver.
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-cli-
ent, 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 circum-
stances 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 the acts of the parties
which indicated that they did not intend it to
be confidential.
Trammel v. United States, 445 U.S. 40 (1980).
Testimonial privileges contravene the funda-
mental 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 pre-
dominant 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, govern-
ment, state or political subdivision shall be
determined in accordance with state law.
Rule 501 of the Federal Rules of Evidence pro-
vides that any state evidence privilege:
• Shall be governed by the principles of the
common law
7-3 GENERAL & WAIVER §712.1
As they may be interpreted by the courts of
the United States,
In light of reason and experience.
A federal court, in determining whether a state
privilege should apply in a federal proceeding, will:
• Adopt a flexible approach to determine the
presence of the privilege in the first instance,
• Determine whether the privilege should
apply under the facts and circumstances,
• Weigh the purpose served by the privilege
against the federal and state interests that
would be involved in the assertion of the
Have both the authority and the responsibility
to determine the existence of the privilege
based on common law in the absence of a
statute or a Supreme Court rule to the contrary.
In ruling on claimed state law privileges, feder-
al courts:
• May recognize the state law privilege when
its recognition would not substantially con-
tradict applicable federal policies, but
Are not required to recognize such privilege.
Must balance interests of comity with federal
NOTE: Federal courts should accord substan-
tial deference to state created privileges as a matter
of comity; yet any such privileges generally will be
strictly construed by the federal court and will give
way when the privilege is outweighed by an import-
ant competing federal interest.
It is also important to remember that the appli-
cation of the state claimed privilege may not apply
to the federal action where:
The claim is based upon a federal statute
(e.g., civil rights violation).
• There are questions regarding privileges in
the federal context. Those issues should be
decided under federal common law.
• State created privileges will not control in
federal criminal prosecutions (e.g., a state
confidentiality of records privilege will not
defeat an otherwise valid federal subpoena
for those records).
If the privilege is a valid one, and the claimant is
the holder of a privilege, the communication will be
protected unless there has been a waiver of the privi-
lege. The privilege can be waived either in court where
a witness’s testimony has destroyed the privilege
through waiver, or out of court. The following sections
deal with both in court and out of court waiver.
Following is the foundation to show in court
The privilege existed;
The witness’s testimony at trial destroyed the
privilege through waiver.
Generally, you will have to show some kind of
voluntary disclosure on the part of the witness at
trial. If there has been a voluntary disclosure, the
privilege is waived. See Johnson v. Zerbst, 304 U.S.
458 (1938).
A privilege can also be waived out of court. The
following is the foundational requirements for such
a waiver:
A privilege existed;
The person abandoned the privilege either
intentionally or
The person waived the privilege unintention-
ally by disclosure to others or
• The person waived the privilege by acts or
conduct which show that the communication
was not meant to be confidential.
Once confidentiality is destroyed, it can never
be restored by any subsequent claim of privilege.
See United States v. Juarez, 573 F.2d 267 (1st Cir.
1978), cert. denied, 439 U.S. 915. Giving written
consent to a psychiatrist to release records, calling
or soliciting testimony of a lawyer by the holder of
the privilege, or repeating communications to a
third party may constitute a waiver of the privilege.
The purpose of new Federal Rule of Evidence
502 is to provide predictable, uniform standards by
which parties can determine the consequences of dis-
closure of attorney-client or work product materials.
The new rules particularly address subject matter

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