PRIVILEGE (P)

FRE 502

Questions that ask for the witness to disclose privileged communications are objectionable. Case law has established several different types of privileged communications. The most well-known and most frequently used form of privilege in trial settings is the Attorney-Client Privilege. Any question that asks a witness to divulge communications between her and her attorney, in which the witness believed she was consulting her attorney to obtain professional legal advice, is privileged communications and therefore, inadmissible.

Examples

• “Is that the truth, or did your attorney tell you to say that?”
• “Can you please explain what you told your attorney during the client intake meeting?”
• “Mr. Booth, you told your attorney that you hated the Confederacy?”
• “What did you tell your doctor regarding how you broke your leg on April 14th of last year?” (Physician-Patient Privilege)

FRE 502. Attorney-Client Privilege and Work Product; Limitations of Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a federal proceeding; or

(2) is not a waiver under the law of the state where the disclosure occurred.

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.

(g) Definitions. In this rule:

(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

Summary

Regardless of prejudicial or probative value, any communications that are deemed privileged will be excluded. The policy behind the rule of privilege is to foster and protect the confidential communications between members of society and professionals who handle sensitive information (attorneys, physicians, clergy, etc.).

Privilege can be waived at any time by (1) failing to make a timely objection; (2) disclosing the privileged communications to a third person; (3) consenting to privilege waiver by the person holding the privilege; or (4) acting in a way that shows consent to waive privilege. Additionally, any communications between an attorney and a client in furtherance of the commission of a crime or fraud are not protected.

The main types of privilege are as follows:

• Attorney-Client (including client as a corporation)
• Work-Product Privilege
• Any materials prepared by an attorney in anticipation of litigation that disclose the attorney’s mental processes and impressions are privileged under the Work-Product Doctrine.
• Psychotherapist-Patient
• Physician-Patient
• Clergy-Communicant
• Marital

Case Law (Privilege)

• Upjohn Co. v. United States, 449 U.S. 383 (1981) (seminal attorney-client privilege case; attorney-client privilege “rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.”)
• WebXchange Inc. v. Dell Inc., 264 F.R.D. 123 (D. Del. 2010) (emails from inventor to Hindu gurus protected under Clergy-Communicant privilege)
• Lenz v. Universal Music Corp., 97 U.S.P.Q.2d 1145 (N.D. Cal. 2010) (client’s disclosure—on Facebook, in e-mails, and in other electronic communications—of his communication with his attorney waived his privilege)
• Simon v. Cook, 261 Fed. Appx. 873 (6th Cir. 2008) (if a witness’s mental health is at issue in the case, then psychotherapist-patient privilege is waived; only in Sixth Circuit)
• In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) (once a client waives privilege, all communications about the same subject matter are no longer privileged)
• U.S. v. Bad Wound, 203 F.3d 1072 (8th Cir. 2000) (an individual cannot be compelled to testify, but is not excluded from testifying, against his or her spouse at the time of trial)
• Swidler & Berlin v. United States, 524 U.S. 399 (1998) (attorney-client privilege encourages full disclosure during legal representation)
• Jaffee v. Redmond, 518 U.S. 1 (1996) (seminal psychotherapist-patient privilege case)
• U.S. v. Marashi, 913 F.2d 724 (9th Cir. 1990) (no marital privilege after divorce)
• U.S. v. Gordon, 655 F.2d 478 (2d Cir. 1981) (defendant's business communications to priest he employed in nonreligious capacity were not protected)
• United States v. Nobles, 422 U.S. 225 (1975) (seminal Work-Product Doctrine case)
• Mass. Mut. Life Ins. Co. v. Brei, 311 F.2d 463 (2d Cir. 1962) (physician-patient privilege continues after death of patient)