Privileges

• Author: Gordon P. Cleary
• Pages: 491-534

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

§700 PRIVILEGES 7-2

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 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?

Elements

Following are the various foundational ele-

ments to establish a privilege:

• The privilege applies to the particular pro-

ceeding;

• 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.

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-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.

Cases

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.

Applicationof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

privilege.

• 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

interests.

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).

Waiver

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.

InCourt

Following is the foundation to show in court

waiver:

• 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).

OutofCourt

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.

FederalRuleofEvidence

LimitationsonWaiverof

AttorneyClientandWork

ProductPrivileges

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