3) privileges Flashcards
use of privileges in fed ct: 501
–only CL privileges recognized as interpreted by fed cts
if diversity/civil: state law (Erie)
if fed q/civil, or crime: privilege of wit is determined by CL
privileges at CL: general rule
no privilege to:
1) refuse to be a wit
2) refuse to disclose any matter
3) refuse to produce any object/writing
CL privileges recognized in fed ct: list
1) atty-C
2) psychotherapist/pt (NOT DR PT)
3) clergyman/penitent
4) spousal immunity + marital communication
privilege analysis: steps
1) protected rship
2) communication
3) confidentiality
4) holder
5) waiver
6) exceptions
atty-C priv: rule
C may refuse to disclose
confidential communications
made for the purpose of seeking professional legal advice
atty C: “confidential coms” def
oral + written sts, plus conduct intended to be confidential
atty C: “confidential coms” exceptions
NOT privileged:
observations
pre-existing documents
atty C: work product: def
privileged material, prepared in anticipation of litigation, by atty
atty C: work product: EXCEPTION
admissible if:
substantial hardship +
no other way of obtaining the evidence
atty C: effect of presence of 3rd parties
- -ok essential 3rd parties (one furthering some purpose of the rship–broad)
- -unknown eavesdroppers do not destroy priv
- -known or anticipated eavesdropper DOES destroy priv
atty C: if atty sends to dr
likely no dr-pt privilege bc sts not made for purpose of med tx
but, may be A-C priv
atty C: “client: def
any person (can be corporation or assn) seeking professional legal services or consulting w possibility of obtaining legal services
atty C “lawyer” def
any person authorized or reasonably believed to be authorized to practice law
ok: disbarred, looks the part, etc.
atty C: holder of priv
C, or
L, on C’s behalf
atty C: scope of time
starts at initial contact
continues even after C’s death (may be asserted by A or by executor)
atty C priv: waiver 502
- -failure to assert privilege timely: usu waiver
- -usu partial when waived (only waived to extent nec to permit reasonable scrutiny by OP)
atty C priv: waiver 502: when total waiver
1) waiver intentional, and
2) both disclosed + undisclosed info concerns the same subject matter
atty C priv: waiver: 502: inadvertent
court will find NOT a waiver if:
1) C did not intend to waive priv
2) C took reasonable steps to protect the info
3) C took timely steps to reemedy disclosure
atty C priv: exceptions
NO PRIV WHEN:
1) future crime or fraud
2) suits btwn A+C
3) joint client exception
4) client ID
5) fee arrangements
atty C priv: exceptions : joint client
2 clients hire same atty, then are involved in litigation w each other.
Result: earlier coms are not privileged, absent agreement otherwise
waiver by one joint holder dn affect right of another joint holder to claim priv
atty C priv: exceptions : client ID
1) client ID usu not privileged (unless disclosure of ID will disclose additional matters)
atty C priv: exceptions : fee arrangments
2) fee arrangements (inc who is paying, billing records)
psychotherapist-pt priv: def
1) LICENSED: sw/psych/mh specialist/marriage counselor (but NOT: edu / vocational counselor)
2) confidential communication w
3) pt who is seeking dx or tx for mental or emo med condition
psychotherapist-pt priv: exceptions
1) sts made re commitment proceedings
2) sts dealing w court-ordered exams
3) when med condition is part of the claim (personal injury, malpractice v dr.0)
4) future crime or fraud
