Using Traditional Privileges

• Author: Ashley S. Lipson
• Pages: 761-784

15-759

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

§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) Law Enforcement 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 15-760

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 legislature to create the privilege because it is institu-

tionally 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).

In re Christus Health Southeast Texas d/b/a Christus St. Mary Hospital, 167 S.W.3d 596 (Texas, 2005). Instead of objecting to discov-

ery based on privilege, a party may withhold the privileged material; however, the party must state that: (1) The information or material

responsive to the request has been withheld, (2) the request to which the information or material relates, and (3) the privilege or privileges

asserted. Also, the description of the information or material withheld on the basis of privilege must be specific enough that the requesting

party can identify each document withheld and assess the applicability of that privilege. Because there is no presumption that documents are

privileged, a party who seeks to limit discovery by asserting a privilege has the burden of proof. Party seeking to limit such discovery can

meet its burden of proof initially by making a prima facie showing of privilege, with the “prima facie standard,” being defined as requiring

the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.

Roman Catholic Archbishop of Los Angeles v. Superior Court, 32 Cal.Rptr. 3d 209, 131 Cal.App.4th 417, 32 Cal.Rptr.3d 209 (2005). A

person claiming a privilege has the initial burden of proving the preliminary facts to show the privilege applies; once that person establishes

the preliminary facts, the burden of proof then shifts to the opponent of the privilege, who must rebut the presumption of confidentiality or

show that the privilege has been waived.

See also In re Christus Health Southeast Texas d/b/a Christus St. Mary Hospital, 167 S.W.3d 596 (Texas, 2005).

§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 consid-

erations of discovery, and more closely akin to the law

of evidence. But because the assertion of a privilege con-

stitutes 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 “confidential communications” may not cut it.

Wherever your client’s materials seem confidential,

you should consider them as being part of a confiden-

tial relationship (which you will term “privilege”) 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 powerful

steel wall that cuts across all boundaries and

procedures. This means that if something is pro-

tected by privilege, it need not be revealed in

court during a motion hearing, a trial or during

any discovery 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 cli-

ent to be very careful about revealing informa-

tion, communications, or documents that might

otherwise be protected by privilege.4

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

powerful and complete if it applies. But that appli-

cation may be subjected to various 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 dis-

cussing, the burden of establishing their applicabil-

ity falls upon the party claiming its protection.5 The