Privileges

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 801-841

Chapter 25

PRIVILEGES

QUICK VIEW

Definitions: A privilege is the right of a person to refuse to disclose (or to compel others to refuse to disclose)

certain information that would otherwise be obtainable. For public policy reasons, the law has determined

to permit certain kinds of information to remain secret. For example, confidential communications between

attorney and client, or physician and patient, or with a member of the clergy, or between spouses have been

deemed “privileged” by the Legislature. Similarly, a person may not be compelled to divulge information that

would incriminate that person, and a journalist may not be compelled to reveal confidential sources. In addition,

some kinds of information — such as tax returns, trade secrets and the like — are so inherently confidential that

the courts have erected barriers to their disclosure.

Scope of Chapter: Rules and techniques applicable to all privileges. Specific rules and techniques applicable

to the following privileges: lawyer-client, work product, joint-defense, self critical analysis, self incrimination,

trade secrets, physician-patient, mental health communications, spousal communications, communications to

clergy, news media sources, and litigation settlement and mediations.

Purposes and Policies: Privileges arise in a variety of contexts, and are based on different policy goals. Some

of the main public policies regarding privileges are to:

• Encourage people to seek professional advice, and freely disclose information to the adviser, without

fear the facts will be made public.

• Encourage open communications between husband and wife, thereby preserving the sanctity of

marriage.

• Prevent competitors from gaining access to the crux of the a business operation or method of gaining

success.

• Prevent excessive or brutal persuasion of witnesses to force testimony or statements that may or may

not be true.

Statutes and Rules: CPLR 3101(c), 3101(d), 4501, 4502, 4503, 4504, 4505, 4507, 4508, 4510, 4547.

Related Topics: Scope of Discovery, Ch 24; Document Production, Ch 26; Interrogatories, Ch 29; Notices to

Admit, Ch 30; Discovery Motions, Ch 31.

NEW YORK CIVIL PRACTICE BEFORE TRIAL 25-2

TABLE OF CONTENTS

I. General Concepts

A. Overview

1. DEFINITIONS; PURPOSES

§25:01 Privileges Defined

§25:02 The Purpose of Privileges

§25:03 Construed Narrowly

§25:04 Statutory Absolute Privileges

§25:05 Common Law Qualified Privileges

§25:06 Who Controls the Privilege?

2. CREATION AND DURATION

§25:20 Privileges Arise as a Matter of Law

§25:21 Duration of Privileges

3. EFFECT OF PRIVILEGES ON DISCOVERY

§25:30 Privileged Matter Need Not Be Divulged

§25:31 Defeating a Qualified Privilege

§25:32 Existence of Privilege Does Not Preclude Deposition

B. Enforcing a Privilege

1. ASSERTING THE PRIVILEGE

§25:40 At a Deposition

§25:41 In Response to Document Demand

2. ESTABLISHING PRIVILEGE

§25:50 Alternatives for Attacking Privilege

§25:51 Burden on Party Asserting Privilege

C. Waiver of Privilege

1. BASIC POINTS

§25:60 Elements of a Waiver

§25:61 Waiver by Holder

§25:62 Waiver by Holder’s “Agent”

§25:63 Other Party Cannot Waive Privilege

2. HOW A PRIVILEGE IS WAIVED

§25:70 Publication to a Third Person

§25:71 Placing Privileged Matter in Issue

§25:72 Undoing Inadvertent Disclosure

§25:73 Waiver by Agreement

II. Attorney-Client Matters

A. Attorney-Client Privilege

1. SUMMARY AND TACTICS

§25:80 Capsule Statement of Privilege

§25:81 Communications Viewed Cautiously

§25:82 Educate Client

§25:83 Lay Groundwork for Motions

25-3 PRIVILEGES

2. ELEMENTS OF A PRIVILEGED COMMUNICATION

a. Must Be a “Communication”

§25:90 Existence of Communication Not Privileged

§25:91 Oral and Written

§25:92 Electronic Transmissions

§25:93 Only Communications, Not Observations

b. Must Be in the Course of Professional Employment

§25:100 Litigation Not Necessary

§25:101 Attorney-Client Relationship Necessary

§25:102 Privilege Covers Both Seeking and Giving Advice

§25:103 In-House Attorneys

§25:104 Experts and Other Professionals

c. Must Be a Confidential Communication

§25:110 Facts Communicated Not Privileged

§25:111 Documents Given to Lawyer Not Privileged

§25:112 Client’s Identity and Location

§25:113 Retainer and Fee Arrangements

§25:114 Multiple Clients

§25:115 The “Common Interest” Privilege

3. EXCEPTIONS

§25:120 Aiding Commission of a Crime or Fraud

§25:121 Attorney/Client Disputes

§25:122 Will Disputes

B. Work Product

§25:130 An Absolute Privilege

§25:131 Form of Evidence

§25:132 Product of an Attorney

§25:133 Related to Litigation

§25:134 Examples: Information from a Witness

§25:135 Communicating with Experts

§25:136 Use to Refresh Recollection Does Not Waive Work Product Privilege

C. Material Created for Litigation

§25:140 Qualified Privilege

§25:141 Must Be Prepared for Litigation

§25:142 Substantial Need and Hardship

§25:143 Settlement Materials

§25:144 Films & Tapes (Including Surveillance Tapes)

§25:145 Accident Reports

III. Self-Incrimination

§25:150 Sources of the Privilege

§25:151 Use in Civil Discovery

§25:152 Use Limited to Avoiding Criminal Incrimination

§25:153 Personal to Holder of Privilege

§25:154 Not Available to Business Entities