PRIVILEGES

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

States often different: often recognize doctor-patient priv;

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.

-Attorney-Client Privilege

*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.

-Spousal Privileges

*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...

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