Using Traditional Privileges

AuthorAshley S. Lipson
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.
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

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