Views from the Bench
| Publication year | 1989 |
| Pages | 34 |
| Citation | Vol. 2 No. 3 Pg. 34 |
Privileges in Utah Law
Michael L. Hutchings, Judge.
On April 13, 1983, the Utah Supreme Court adopted the new Utah Rules of Evidence. These rules became effective for use in Utah state court proceedings on September 1, 1983. With a few but significant exceptions, the Supreme Court adopted recommended rules drafted by the Utah State Bar Rules of Evidence Advisory Committee (hereinafter referred to as the Advisory Committee).
In the area of evidentiary privileges, however, the Court did not accept the recommendations of the Advisory Committee and instead promulgated Rule 501 which states:
"Privileges are governed by the common law, except as modified by statute or court rule."
The Advisory Committee note to Rule 501 gives an explanation of the historical background to promulgation of Rule 501:
The committee recommended a substantial revision of the privileges to be applied by the courts, and that all statutory provisions to the contrary be superseded. The Supreme Court declined to adopt this recommendation indicating that it was "disposed to delete Article V. 'privileges' from the proposed rules and thus leave the current statutory privileges in full force and effect." The Court decided in-stead to invite the legislature to address such statutory additions, deletions or modifications.
Every Utah trial lawyer and judge is regularly presented with evidentiary privilege issues. Privileges apply not only to court proceedings but also to discovery. See Rule 26(b)(1) U.R.C.P.
The Utah law on privileges is not well defined due to a combination of four factors. First, the more recognized privileges overlap in their scope and breadth and are often articulated in more than one place, i.e., in common law court decisions, state statutes, Utah and United States Constitutions and court rule. Second, there exists a lack of report case decisions construing privileges. Third, the reported case decisions often do not clearly identify the holding of the case as being grounded in a statute, rule, constitutional provision or in the common law. Often, there are differences in the language of the various privileges articulated in statute, common law, rule and constitution. Fourth, the legislature has not yet considered the issue of privileges in a comprehensive manner. It has promulgated, in a piecemeal fashion, extensive statutory privileges and has classified as confidential numerous communications made to, or records in the possession of, government and private agencies and individuals.
These privileges and confidentiality provisions of the law are significant because they define what information is available to litigants through discovery and what evidence is admissible in court. The cumulative effect of Utah's myriad of privileged and confidential communications and records laws is undeniable: there is much potential evidence in the hands of private and government agencies and personnel that is not discoverable nor admissible in court.
It is the purpose of this article to merely identify, and in a few instances briefly comment upon, the various evidentiary privileges and types of records and communications which presently may be inadmissible in discovery and in Utah court proceedings. Time and space limitations do not allow for a complete evaluation of this important yet little known area of the law.
It is my hope that this attempt at publishing a comprehensive list of privileges will assist the bench and Bar in better understanding the present expansive state of the Utah law of privileges.
PRIVILEGES PURSUANT TO COURT RULE
1. Attorney Work Product Privilege. The attorney work product privilege is articulated in Rule 26(b)(3) of the Utah Rules of Civil Procedure and protects discovery or disclosure of an attorney's work product. That rule states in pertinent part "... the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."
2. Court Interpreters. Court interpreters involved in attorney client communications are granted a privilege. See Rule 14.4, Rules of Practice in the District and Circuit Courts.
3. Disciplinary Proceedings Before the State Bar Association. See Rules VI and X, Procedures of Discipline of the Utah State Bar.
4. Sealed or Confidential Court Documents or Judicial Records. See Rules 4-202, 203, 204 and 207, Code of Judicial Administration.
5. Records of the Juvenile Court, Rule 38, Juvenile Court Rules of Practice. See also 78-39-44(3) U.C.A.
6. Privileges in the 1971 Utah Rules of Evidence. The question is sometimes asked, "Are the privileges articulated in the 1971 Utah Rules of Evidence still in force?" The 1971 Rules contain some privileges not otherwise found in Utah law and numerous modifications to the privileges stated elsewhere in Utah law.
Some attorneys have successfully argued in favor of giving effect to the privileges in the 1971 Rules. They reason that the Utah Supreme Court intended to leave the complete status quo of the law of privileges existing in 1983 in full force and effect when it promulgated Rule 501 of the new Utah Rules of Evidence. Rule 501 states: "Privilege is...
To continue reading
Request your trial