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Question 1

How do you waive a privilege?

Answer 1

By disclosing a protected communication to a third-party

Question 2

What’s the difference between the way that the FRE sees waiver of privileges and the way that California does?

Answer 2

In California a privilege is waived if any holder, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.

Question 3

What are the different types of waiver of privileges?

Answer 3

– conscious waiver
– waiver by consent
– negligent waiver
– waiver by disclosure

Question 4

What is involved in conscious waiver of privileges?

Answer 4

Voluntary disclosure. The plaintiff chooses to disclose a privileged communication he could have kept confidential.

Question 5

If a plaintiff is asked at trial by his attorney if he saw a doctor, and the plaintiff says, “yes, and I told him my neck hurt.“ What has happened?

Answer 5

The plaintiff consciously waived the privilege between Dr. and patient because he chose to testify about it in court.

Question 6

If you testify at trial that your attorney said you could cancel the deal without facing penalties, what has just happened?

Answer 6

You have disclosed your own confidential information with your attorney, and thus waived attorney-client privilege for that information

Question 7

What is involved in waiver by consent?

Answer 7

The holder of the privilege consents to someone else disclosing the communication instead of him disclosing it himself

Question 8

If an attorney calls a doctor as a witness and asked her what the plaintiff told her, and she says the plaintiff said her neck hurt, what just happened?

Answer 8

The plaintiff chose to allow the doctor to testify to communication made in confidence, and thus the doctor-patient privilege was waived

Question 9

If you have your attorney testify at trial for you that you said you could cancel the deal and not face any penalties, what type of waiver is that?

Answer 9

Waiver by consent because you consented to another person (your atty) testifying to attorney-client privileged communication

Question 10

What is involved in negligent waiver?

Answer 10

This is when a party fails to object to disclosure of a privileged communication when they had the opportunity to do it

Question 11

If a plaintiff’s attorney cross examined the defendant and asked him to admit that he told his attorney he ran the red light, but the client’s attorney was asleep and didn’t object, what does happened?

Answer 11

Negligent waiver of the attorney-client privilege

Question 12

In pretrial discovery when a party produces thousands of pages of documents in response to a document request, before producing these, a party must go through the documents and pull out the ones that are not relevant or responsive to the request, or are privileged. If an attorney fails to pull a privileged document, what has just happened?

Answer 12

Negligent waiver has occurred. There was no desire to waive privilege, but it happened because of the in action

Question 13

If on cross-examination a defendant is asked if his attorney told him he could cancel the deal without facing any penalties, and the defendant refuses to answer the question, what has just happened?

Answer 13

Still a negligent waiver has occurred because he failed to object

Question 14

What is inadvertent waiver of privileges?

Answer 14

When a party accidentally produces a document in response to a discovery request. If the disclosure is inadvertent, the rule is that there was no waiver as long as the holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error

Question 15

If a partner trains associates during document review that certain names and addresses are privileged, and he spot-checks their work periodically to be sure they are following instructions, is he taking reasonable enough steps to prevent inadvertent disclosure?

Answer 15

Yes

Question 16

If a partner at a firm discovers that a privileged document was inadvertently produced to the other side during a discovery request, what must he do to avoid waiver?

Answer 16

He must immediately thereafter contact the other side, ask for the document, and explain the situation

Question 17

What is waiver by disclosure?

Answer 17

When the holder of the privilege waives confidentiality by disclosing to a third-party. The disclosure destroys the privilege

Question 18

What is the most frequently tested waiver of privileges?

Answer 18

Waiver by disclosure

Question 19

If a defendant tells a friend that he told his attorney he ran the red light, what has just happened?

Answer 19

He waived the privilege of confidentiality by disclosing it to a third person

Question 20

On cross-examination, if the opposing attorney asks the party if he told his boss that his attorney said he could cancel the deal without penalties, what has just happened?

Answer 20

There has been a waiver by disclosure because by disclosing to the boss the communication with the attorney, that destroyed confidentiality.

Question 21

What is the exception to waiver by disclosure?

Answer 21

Disclosure to a third-party where their presence or inclusion is reasonably necessary to promote the privileged relationship doesn’t destroy the privilege.

I.e.: during a meeting with your attorney his secretary takes notes. She’s not an attorney, so there is no attorney-client privilege for her, but her presence promotes the attorney client relationship because she helps make interviews more effective. So disclosing that information in front of her doesn’t destroy privilege

Question 22

What are some examples of people that you can disclose things in front of as an exception to waiver by disclosure?

Answer 22

Secretaries, paralegals, private investigators, translators, nurses, physician assistants, parents of minors, etc.

Question 23

For the exception to the waiver by disclosure that allows for disclosure to be made to a third-party when their presence or inclusion is reasonably necessary to promote the relationship, must the attorney or doctor be present when the disclosure is made to the third party for that privilege to apply?

Answer 23

No. The client can communicate with a third-party directly for a purpose of that person relaying information to the professional, and that still preserves confidentiality. I.e.: if a nurse is doing intake and the patient tells her his neck hurts, but the doctor is not present, that communication is still made to help the doctor treat or diagnose the patient, so privilege still applies

Question 24

What is double privilege?

Answer 24

This is similar to double hearsay. As long as there is a privilege that applies to each level, it is fine

Question 25

If a defendant tells an attorney he ran the red, then he later tells his wife what he told his attorney, does double privilege apply?

Answer 25

Yes, because for the communication between the attorney and the defendant there is attorney-client privilege, and for the one with his wife there is spousal privilege

Question 26

What happens if a third party overhears privileged communications without the knowledge or consent of the holder of the privilege?

Answer 26

The holder is not responsible if the client used a good method of communication that he reasonably believed would keep communication confidential.

Question 27

If a defendant is charged with murder, and he sees his attorney who meets him in an elevator, and the defendant starts talking while others are in the elevator, does that destroy privilege?

Answer 27

Yes, because he has no reasonable expectation that the attorney is the only one hearing what he is saying, so the confidentiality is destroyed.

Question 28

If a client and his attorney are alone in an elevator and a technician happens to overhear what they are saying on an intercom, does that destroy confidentiality?

Answer 28

No, because the client had a reasonable expectation that the communication was confidential, so that is OK. The focus is on what the client intended/knew/should have known

Question 29

If communication happens electronically, does it lose its privilege?

Answer 29

A communication does not lose its privileged character just because it’s communicated by electronic means or others are involved in the delivery, facilitation, or storage of the electronic communication and may have access to the content of it.

Question 30

If your job gives you a work email but says it is just for work and it is monitored, if you use that email to send a message to your attorney, what has happened?

Answer 30

There are now confidentiality problems. The holder was aware that the means he chose for transmitting that privileged information would disclose it to a third person that wasn’t authorized to be present, so the communication is not confidential and can be disclosed over objection

Question 31

Who all can waive a privilege?

Answer 31

Only the holder of the privilege can waive it

Question 32

If a client tells a friend what he told his attorney, he has waived attorney-client privilege. But if the attorney tells his friend what the client told him, has the attorney waived attorney-client privilege?

Answer 32

No because only the holder of a privilege can waive it, so this is not the attorney’s privilege to waive. You can prevent the attorney’s friend from testifying at trial about what the attorney told him

Question 33

What is joint privilege?

Answer 33

When two people, such as business partners, go to see an attorney together each is a joint holder, so waiver by one does not waive the privilege for the other

Question 34

If one joint holder tells a friend what an attorney told him and his partner, does that waive the partner’s privilege?

Answer 34

No

Question 35

Is it possible for someone other than the holder of a privilege to invoke it on the holder’s behalf?

Answer 35

Yes

Question 36

If a conversation with other people involves the same subject matter as a confidential communication with your attorney, does that result in a waiver of attorney-client privilege?

Answer 36

No. The communication with the attorney, not the facts themselves, are what is confidential. If you only disclose the facts, not the communication, that does not cause a waiver.

Question 37

What is attorney-client privilege?

Answer 37

Communications that happen between an attorney and his client are privileged and neither of them will be required to testify about it. This allows the holder to refuse to testify or give documents and to prevent others from doing so as well in relation to information that was shared between the attorney and the client. This protects both disclosures by the client and advice from the attorney

Question 38

What is the rationale behind attorney-client privilege?

Answer 38

It encourages frank discussion between an attorney and his client which helps the attorney give good advice.

Question 39

Who all can waive attorney client privilege?

Answer 39

Only the client, because he is the holder of the privilege, but the attorney is obligated to invoke the privilege on the client’s behalf

Question 40

Does attorney-client privilege protect the facts underlying the communication?

Answer 40

No, it only protects the communication itself. Facts that are discoverable don’t become protected just because a client told his attorney about them

Question 41

What’s the difference between California and the FRE in relation to attorney-client privilege?

Answer 41

California has no special rule on waiver of this privilege or of work product privilege