#11681 - Privileges - Evidence

Rationale: value of the evidence < value of the right/relationship. Incentivize certain communications.

FRE 501: Civil case where state law supplies ALL the rules of decision => state priv law applies

ADVERSE INFERENCE? Generally not allowed in a civ or crim case. But court has discretion (403).

-Ex: using priv as sword and shield. “If opposing had a good case they’d show X” X is prived by you.

*Applied aggressively (unlike other privs). (Rationale: don’t want to chill these communications).

1) Communication:

-only the substance of the communications are protected.

-“Applies where necessary to achieve its purpose” – “protects disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” (Tornay).

Ex: Identity of the client: protected ONLY IF revealing their ID would necessarily reveal what they discussed with the attorney.

-Ex: anonymously paying taxes owed. Client ID is privileged, since ID is akin to communication that client has delinquent tax returns.

-Ex: paid atty with a counterfeit bill. Client ID NOT privileged.

NOT protected:

-the underlying information/documents communications were based on.

-can’t just run your shit through an atty to hide it).

-observations made in the context of communications (client’s responsiveness, logical reasoning, competence, handwriting, appearance, sound of voice).

-Competence of client: (MAJ) atty can be questioned about whether they believed client was competent, even though those impressions can be based on contents of communications too

2) Between a lawyer and client

Lawyer: person authorized to practice law in the relevant jurisdiction, or reasonably believed by the client to be authorized to practice law. AND THEIR AGENTS.

Intermediary doctrine: non-lawyers with “menial or ministerial responsibility that involves relating communications to an attorney” covered. (Kovel).

-agents covered if their input is essential to the lawyer’s provision of legal services.

-paralegals, summer clerks, experts, private compliance consultants (KBR).

-NOT insurance adjusters (Pasteris), accountants.

Attorneys of co-parties covered as well, when comm. concerns a joint claim/defense

Client:

-dead men included, their estate controls the privilege. (Swidler).

-Corporations: does particular employee = corporation for purposes of privilege?

If yes, =>corporate board controls the privilege. Employee himself is unprotected though.

Upjohn Factors: (key is what the attorneys intended, and what the particular individuals were told about the communication).

-understanding of confidentiality (without one, likely not privileged).

-employee communicated w/ GC (atty) acting in legal capacity, for purpose of helping company get legal advice. And employee knew that was the purpose.

-employees directed to comply by their supervisors

(shows corp thought this was necessary for provision of legal services).

-communication concerned matter within the scope of the employee’s duties

3) Made in confidence: include only the lawyer, client and necessary support staff.

-Reasonable precautions must have been taken that communications not be disclosed to 3rd ptys

-Ex: not reasonable, using company email if you’ve been told that they are monitored.

-Third parties: attys who aren’t retained for the matter; adult family members;

NOT kids who cannot understand the matters discussed.

-not communications made w/ intent that they be passed on to a third party.

-Lawless: financial docs to atty for tax return, intent for some info to be transmitted to 3rd party.

-But see Apotex: technical info sent to patent attys were covered. (legal v. non-legal too hard)

CONTINUE===

4) For purposes of facilitating provision of legal services

-attorney involved, and performing task that only an attorney can perform?

-NOT conveying/delivering property (Hughes).

-Purpose of the communication: (relevant to varying degrees).

(min) ‘but for’ test: if a significant purpose wasn’t legal, then no privilege.

-Primary Purpose of the communication was getting legal advice? (KBR).

-internal compliance investigation by non-attys is still covered.

-Significant purpose of the communication was getting legal advice.

5) No waiver (OF the subject matter discussed), due to…

*Client controls the privilege, and can waive expressly or impliedly through agency authority of atty. :

-putting privileged material (the substance of the legal communications) in issue

-by using them to prep your witness. Other side can see them and CX (FRE 612, see above).

-Crime/fraud/tort exception: Services obtained to aid commission of a crime/tort.

(atty didn’t have to know of that purpose).

-Lawsuit between lawyer and client (fee disputes, malpractice, etc.)

-Lawsuit between jointly represented parties (atty repped both, stuck in the middle).

-atty was witness to document that’s authenticity is in dispute (like a will).

-Inadvertent disclosure (be careful w/ discovery, “if in doubt, pull it out”).

-can be withdrawn: [FRE 502(b)]

1) (inadvertent); 2) privilege holder took reasonable steps to prevent it;

(looking at reasonable percentage of documents sent given time constraints, etc.)

3) privilege holder promptly took reasonable steps to rectify it.

-safest course is to notify other side and go to court as soon as you find out about it.

if waived=> anything discussed w/r/t the disclosed topic is in (subject to fairness, no sword+shield).

No waiver=>Priv. held by client (and must be asserted by atty). Info can’t be discovered/testified about.

*Must be strictly construed, like all privs (besides atty-client).

1) Applicable situation:

-attempt to get spouse’s testimony from police inquiry, or other formal mechanism to extract info abt spouse

-NOT admitting statements spouse already made. (Ex: excited utterance 911 call).

=>None of the above => neither spousal privilege applies.

2) Couple currently married (at time testimony is sought)?

-Doesn’t matter when the acts testified about occurred

Marriage: must be valid in the state of celebration. SSM counts. (some) civ unions too..

-Separated Spouses still count as married? (SPLIT)

-9th: will not inquire into substance, as long as formally married. Defer to spouse.

BUT still can’t be a sham marriage (?)

-Others: No marriage if married but separated w/ no reasonable chance of reconciliation

Factors: (SCOTUS has said privs should be narrowly construed): cohabitating; time lived apart; one filed for divorce; property ownership arrangements; subjective intent of both w/r/t marriage.

NO=>Adverse testimonial spousal priv doesn’t apply. BUT conf comm priv might. SKIP TO #5

3) Criminal case?

NO=> Adverse testimonial spousal priv doesn’t apply. BUT conf comm priv might. SKIP TO #5

4) Spouse from whom the ADVERSE testimony is sought wishes to testify?

*Testimony about ANYTHING ADVERSE FROM ANYTIME. Not just communications.

-Adverse: testimony has to be adverse to the other spouse for the privilege to apply. Can’t refuse to help their spouse w/ defense testimony.

-Wishes: there can be coercion (like from prosecutor) but as long as witness is choosing, it’s ok.

YES=> Adverse spousal testimonial privilege doesn’t apply. (Trammel) They can testify, assuming it wasn’t a confidential communication.

-Witness spouse controls the privilege. No need for confidentiality; communication, etc.

NO=>Spouse wants to invoke the priv and not testify, AND no waiver: check #6

=>Adverse spousal testimonial privilege applies. Absolute ban on them taking the stand. Go to #5 to see if conf. comm also applies.

-CONFIDENTIAL SPOUSAL COMMUNICATION PRIVILEGE

5) Potential testimony concerns

a) Confidential communication

-similar standard to atty/client. Confidentiality, only protects substance of communications.

b) Made btwn spouses while they were married. (even if they aren’t anymore).

YES=>AND no waiver (check #6).

=>Spousal confidential communication privilege applies.

-Communicating spouse controls the privilege. (can stop other spouse from talking)

-(some) recipient spouse controls as well (so need permission from both).

Recipient spouse can take stand, but can’t testify about the privileged matter.

6) Privilege not waived/abrogated?

*Waver goes only to the subject matter discussed.

-divorce actions

-(MAJ) crimes between family members (domestic violence against kids or spouse)

-Inadvertent waiver

-Waiver because of testimony

Ex: accused calls them to the stand for favorable testimony (adverse testimonial priv doesn’t apply when its friendly), but then prosecution can ask about these matters on CX.

-(some) Joint participation in a crime or fraud

-Concern that this allows prosecutor to get around priv by just charging both spouses.

*Must be strictly construed, like all privs (besides atty-client).

-PSYCHOTHERAPIST PRIVILEGE (Jaffee).

1) Confidential Communication

-mandatory therapy as condition of employment => lack expectation of confidentiality.

2) Between patient and (necessary intermediary of psychotherapist)/psychotherapist

-Patient has to reasonably believe that the other person was a licensed psychotherapist.

-Licensed social workers included too.

-9th: unlicensed psychotherapists/social workers too.

3) Communication made for the purpose of getting treatment/diagnosis (perspective of both sides)

4) No exception/waiver: PATIENT controls. Therapist asserts on his behalf.

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