Using Traditional Privileges

• Author: Ashley S. Lipson
• Pages: 919-946

Privilege is a solid but slippery shield;

drop it for a moment, and all of the motions

for protection, exclusion or suppression will

never raise it again.

Chapter 15

Using Traditional Privileges

Table of Contents

§15.10 Confidential Relationships in General

§15.11 Professional Privileges

§15.11(a) Attorney-Client Privilege

§15.11(b) Physician-Patient Privilege

§15.11(c) Therapist-Patient Privilege

§15.11(d) Clergyman-Penitent Privilege

§15.11(e) Accountant-Client Privilege

§15.11(f) Journalist-News Source Privilege

§15.12 Business and Administrative Privileges

§15.12(a) Trade Secrets and Business Confidences

§15.12(b) Legislative Deliberative Privileges

§15.12(c) Self-Critical Analysis Privilege

§15.13 Domestic Privileges

§15.13(a) Confidential Marital Communications

§15.13(b) Marital Testimonial Privilege

§15.13(c) Parent-Child Privilege

§15.14 Criminal Privileges

§15.14(a) Privilege Against Self-Incrimination

§15.14(b) Informant’s Privilege

§15.20 The Work Product Doctrine

§15.30 The Forms That You Need

Form 15.1(a) Privilege Log (Small Number of Documents)

Form 15.1(b) Privilege Log (Large Number of Documents)

Form 15.2 Clawback Agreement

Form 15.3 Confidentiality Agreement

§15.10 Guerrilla Discovery 15-2

1 In addition to the widely recognized privileges covered in this chapter, there are endless numbers of state and federal privilege

statutes designed to protect a wide variety of communications with entities ranging from unemployment compensation boards

(see, for example §537 of the New York Labor Law) to the census man (see Baldrige v. Shapiro, 455 U.S. 345 (1982)).

This is not to imply that privileges are easy to create. The contrary is true. See In re Grand Jury Subpoena, 926 A.2d 280 (N.H.

2007), declaring that the courts should be particularly circumspect about creating new privileges based upon perceived public

policy considerations. It is only when the need for the privilege is so clear and the desirable contours of it are so evident that it

is proper for the court to craft the privilege in common law fashion under the rules of evidence; otherwise, it is for the legisla-

ture to create the privilege because it is institutionally better equipped to decide whether adopting a new privilege is in society’s

best interests.

2 Moss v. Blue Cross & Blue Shield of Kansas, Inc., 241 F.R.D. 683 (D. Kan. 2007). Confidentiality of documents does not equate to

privilege, and, as such, information is not shielded from discovery on the sole basis that such information is confidential.

Patterson v. Turner Const. Co., 88 A.D.3d 617, 931 N.Y.S.2d 311 (N.Y.A.D. 1 Dept., 2011). Postings on plaintiff’s online account

with a social networking service, if relevant, were not shielded from discovery merely because plaintiff used the service’s privacy

settings to restrict access.

3 See Navajo Nation v. Norris, 331 F.3d 1041 (9th Cir. Wash. 2003).

4 Urge the client to be particularly careful when using e-mail.

5 State v. Myers, 839 So.2d 1183 (La.App. 2003). With respect to the attorney-client privilege, see Cobell v. Norton, 213 F.R.D.

69 (D.D.C. 2003). --continued on page 15-3

§15.10 Confidential Relationships

in General

There are many shapes and sizes of confidential

relationships. This chapter intends to briefly discuss

the “majors.” Since the law of privilege is a creature

of the common laws of the several states, our list is by

no means exhaustive.1 Nor is the manner in which the

subject is covered. The law of privilege is a substantial

undertaking unto itself, separate and apart from con-

siderations of discovery, and more closely akin to the

law of evidence. But because the assertion of a priv-

ilege constitutes a complete defense to any discovery

request, we need to cover the basics.

PRACTICE TIP

Not all confidential relationships are

referred to as privileges.2 But from a defensive

posture, they should be. In particular, soldiers

deploying any of the defensive maneuvers

referred to in this section should always shout

“privilege,” loud and clear. The term “confi-

dential communications” may not cut it.

Wherever your client’s materials seem confi-

dential, you should consider them as being part of a

confidential relationship (which you will term “privi-

lege”) even if those materials do not conveniently fit

into one of the classic privilege pigeonholes. The trial

courts generally have wide discretion with respect to

such matters. If your claim has factual merit, the judge

may be sympathetic.

With the foregoing mind, it is time to consider

the most basic privileges. But first, before marching

into the specifics there are a few tactical things to

know about the laws of privilege in general.

• First, the defense of privilege is a pow-

erful steel wall that cuts across all bound-

aries and procedures. This means that if

something is protected by privilege, it

need not be revealed in court during a

motion hearing, a trial or during any dis-

covery proceeding.3

• Second, every privilege can be waived.

Once the information has been revealed to

any third party, the cat is out of the bag. So

urge your client to be very careful about

revealing information, communications,

or documents that might otherwise be pro-

tected by privilege.4

• Third, privilege is not absolute. To be sure,

it is powerful and complete if it applies. But

that application may be subjected to vari-

ous balancing tests. Those tests are certain

to weigh the importance of the privilege

against the litigant’s need to know.

• Fourth, for most of the privileges that we

will be discussing, the burden of establish-

ing their applicability falls upon the party

claiming its protection.5 The mere asser-

tion of a privilege is not enough.

•Fifth, challenges to the applicability of a

privilege for a particular item of evidence