Privileges

• Author: Helen E. Freedman/Gerald Lebovits
• Pages: 197-236

7-1

CHAPTER 7

PRIVILEGES

I. PRINCIPLES

§7:10 Denition and Purpose

§7:20 Categories of Privileges

§7:30 Asserting Privilege

§7:35 Corporate Clients

§7:40 Eect of Establishing Privilege

§7:50 Electronic Communication of Privilege

§7:55 Disclosure About Ocial Proceeding

II. OBJECTIONS

A. Constitutional Privilege

§7:60 Self-Incrimination

B. Statutory Privileges

§7:70 Attorney-Client

§7:80 Attorney Work Product; Material Prepared for Litigation

§7:90 Physician-Patient

§7:100 Spousal

§7:110 Cleric-Congregant

§7:120 Professional Journalist

§7:130 Psychologist

§7:140 Social Worker

§7:150 Rape Victim-Crisis Counselor

§7:160 Library Records

C. Common Law Privileges

§7:170 Parent-Child

§7:180 State Secrets, Ocial Information or Public Interest Privilege

§7:190 Informant

§7:200 Employers

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7-3 PRIVILEGES §7:30

I. PRINCIPLES

§7:10 Def‌inition and Purpose

A privilege is a right to resist disclosure of a communication made within the connes of certain personal,

condential relationships. People v. Carmona, 82 N.Y.2d 603, 606 N.Y.S.2d 879 (1993).

Courts favor full disclosure of all relevant information as the quickest means to the truth. However, when a

privilege is invoked, the policy favoring full disclosure defers to a competing public policy favoring free commu-

nication between individuals in certain condential relationships. us, evidence that would otherwise be deemed

competent is excluded on the basis of a policy that places greater importance on the protection of the condential

relationship or constitutional right in question. Tekni-Plex Inc. v. Meyner and Landis, 89 N.Y.2d 123, 651 N.Y.S.2d

954 (1996); People v. Osorio, 75 N.Y.2d 80, 550 N.Y.S.2d 612 (1989).

In general, privileges are narrowly construed and must further the rationale for the particular privilege asserted.

Spectrum Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809 (1991).

§7:20 Categories of Privileges

In New York, privileges may be divided into three major categories, with various subtypes in those categories:

• Constitutional:

• Self-incrimination. U.S. Const. amend. V, XIV; N.Y. Const. art. I, §6; see §7:60.

• Statutory:

• Attorney-client. CPLR 4503(a); see §7:70.

• Attorney work product and material prepared for litigation. CPLR 4503(b), (d)(2)); see §7:80.

• Physician or health professional-patient. CPLR 4504; see §7:90.

• Spousal. CPLR 4502; see §7:100.

• Cleric-congregant. CPLR 4505; see §7:110.

• Professional journalist. Civ Rights L §79-h; see §7:120.

• Psychologist-patient. CPLR 4507; see §7:130.

• Social worker-client. CPLR 4508; see §7:140.

• Rape-crisis counselors and clients. CPLR 4510; see §7:150.

• Common law:

• Parent-child. See §7:170.

• State secrets. See §7:180.

• Informants. See §7:190.

• Employers. See §7:200.

§7:30 Asserting Privilege

A privilege is a personal right that may be asserted or waived only by the individual holding the privilege.

Spectrum Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809 (1991). It follows that

the burden of establishing a privilege is on the party claiming it. Priest v. Hennessy, 51 N.Y.2d 62, 431 N.Y.S.2d

511 (1980). Typically, the person asserting a privilege must establish the following:

• at a privilege exists. Peerenboom v. Marvel Entm’t, LLC, 148 A.D.3d 531, 50 N.Y.S.3d 49 (1st Dept.

2017) (no privilege between an accountant and client exists in New York).

• e communication must have been made in the context of a condential relationship, and must have

been made in condence. People v. Osorio, 75 N.Y.2d 80, 550 N.Y.S.2d 612 (1989).

• e privilege must be personal, and must be asserted by the party to whom it belongs; for example, the

attorney-client privilege belongs to the client and must be asserted or waived by the client. Spectrum

Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809 (1991); People v. Ackley,

235 A.D.2d 633, 652 N.Y.S.2d 642 (3rd Dept. 1997).

• e party holding the privilege must not have waived it; for example, if the communication was made in

the presence of a third party who was not a necessary party to the communication, the privilege may be

deemed waived. People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694 (1982).