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Flashcards in Privileges Deck (12):

What law determines privileges in federal court?

Federal question jurisdiction: privileges follow principles of the common law, interpreted in the light of reason and experience.
Diversity jurisdiction: apply the law of privileges of the state whose substantive law is applicable


What are the elements of the attorney-client privilege? What are the limits?

(1) confidential communications
(2) between attorney and client (or either's representative)
(3) during professional legal consultation
• waiver by client
• exception to privilege (e.g., crime/fraud exception)


Who may waive attorney-client privilege?

only the client


When will a partial waiver of the attorney-client privilege waive the privilege to other communications?

satisfy all:
(1) partial disclosure is intentional
(2) disclosed and undisclosed communications concern the same subject matter, and
(3) fairness requires that the disclosed and undisclosed information be considered together


What is the effect of an inadvertent waiver of the attorney client privilege?

It will not waive the privilege so long as the privilege-holder both:
(1) took reasonable steps to prevent the disclosure, and
(2) takes reasonable steps to correct the error


What are the exceptions to the attorney-client privilege?

• future crime/fraud
• client puts legal advice in issue
• attorney-client dispute


Under what law does the physician-patient privilege exist?

Usually created by state statute. Does not exist if the court applies federal law. Under federal law, only the psychotherapy privilege exists.


What are the elements of the physician-patient privilege?

satisfy both:
(1) confidential communication or information acquired by physician from patient...
(2) for purpose of diagnosis or treatment


Besides physicians, to whom does the physician-patient privilege apply?

psychotherapists (professional certified to diagnose or treat mental / emotional illness)


What is the exception to physician-patient privilege?

When the plaintiff expressly or impliedly puts physical or mental condition in issue


Define the two spousal privileges.

• criminal cases only
• spouse cannot be forced to testify against defendant spouse
• testifying spouse is holder of the privilege
• only applies while married
• confidential communication...
• made during the marriage...
• cannot be used unless both spouses consent
• survives marriage


What are the exceptions to both spousal privileges?

• communications or acts in furtherance of jointly perpetrated future crime or fraud
• communications or acts destructive of family unit (e.g., spousal or child abuse)
• litigation between the spouses themselves