CHAP. 12 : PRIVILEGES

P. JANICKE FALL 2011

DEFINITION

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A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE

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EVEN THOUGH RELEVANT

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EVEN THOUGH CRUCIAL

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EVEN THOUGH NO PREJUDICE UNDER R403

2011 Chap. 12 -- Privileges 2

PURPOSE

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TO FURTHER SOME SOCIETAL GOAL

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REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF

2011 Chap. 12 -- Privileges 3

ATTORNEY-CLIENT PRIVILEGE

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A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL

2011 Chap. 12 -- Privileges 4

HELL OR HIGH WATER

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THERE ARE NO EXCEPTIONS BASED ON NEEDS OF THE OTHER SIDE

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THEY CAN TRY TO DISCOVER THE FACTS SOME OTHER WAY THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT

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MALPRACTICE ACTION TO COLLECT A FEE

2011 Chap. 12 -- Privileges 5

SO-CALLED CRIME/FRAUD “EXCEPTION”

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WHERE CLIENT’S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN’T MET (

PURPOSE ISN’T TO GET LEGAL

ADVICE)

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NOT REALLY AN EXCEPTION, BUT OFTEN CALLED ONE

2011 Chap. 12 -- Privileges 6

WHERE LAWYER DECLINES THE REPRESENTATION

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NO EFFECT ON THE PRIVILEGE

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NO RELATIONSHIP NEEDED

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SEE DEFINITION

2011 Chap. 12 -- Privileges 7

EAVESDROPPER

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NO EFFECT

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SEE DEFINITION : APPARENT CONFIDENTIALITY IS ENOUGH

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SOME OLDER CASES CONTRA

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EAVESDROPPERS CAN BE ENJOINED

2011 Chap. 12 -- Privileges 8

BOTH SIDES OF CONVERSATION COVERED

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TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND IS CALLED DERIVATIVELY PRIVILEGED

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E.G. : “HMMM! THEN YOU’RE GUILTY OF MURDER!”

2011 Chap. 12 -- Privileges 9

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MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS

2011 Chap. 12 -- Privileges 10

THE CLIENT “OWNS” THE PRIVILEGE

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CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT

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CAN DECIDE WHICH OF LAWYER’S HELPERS, IF ANY, SHOULD SEE IT

2011 Chap. 12 -- Privileges 11

WAIVER

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ONLY BY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER)

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EXPRESSLY WAIVES

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PERSONALLY AUTHORIZES DISCLOSURE OF THE COMMUNICATION

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AUTHORIZES AGENT TO DISCLOSE THE COMMUNICATION

• 2011

WAIVES BY CONDUCT

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REVEALS THE COMMUNICATION TO OTHERS “OUTSIDE THE FAMILY”

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HANDS OVER DOCUMENTS CONTAINING THE COMMUNICATION

Chap. 12 -- Privileges 12

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WAIVER BY CONDUCT: HALF-OPEN DOOR RULE

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REVEALING PARTS IN TESTIMONY RELYING ON “ADVICE OF COUNSEL” TO DEFEAT CERTAIN REMEDIES

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REVEALING ONE OPINION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC NEW RULE 502

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CODIFIES THE HALF-OPEN RULE OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM

2011 Chap. 12 -- Privileges 13

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LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION

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EVEN IF EMBARRASSING TO THE LAWYER

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A RESULT OF CLIENT “OWNING” THE PRIVILEGE

2011 Chap. 12 -- Privileges 14

IMPACT OF WAIVER MADE IN A FEDERAL CASE

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MAY OPERATE AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER

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IF THE TWO COMMUNICATIONS OUGHT “IN FAIRNESS” TO BE CONSIDERED TOGETHER

2011 Chap. 12 -- Privileges 15

IMPACT OF WAIVER: COMMON LAW AND STATE RULE

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WAIVER AS TO ONE COMMUNICATION WAIVES AS TO ALL OTHER COMMUNICATIONS ON THE SAME TOPIC, UP TO THE DATE OF THE WAIVER

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TO PREVENT PICK-AND-CHOOSE TACTIC

2011 Chap. 12 -- Privileges 16

TWO MARITAL PRIVILEGES

[TEXAS RULE 504]

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MARITAL COMMUNICATIONS

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MADE DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS

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PRIVILEGE BELONGS TO THE SPEAKING SPOUSE

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DOESN’T EXTEND TO CONTEMPORANEOUS ACTIONS

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PRIVILEGE SURVIVES DIVORCE

2011 Chap. 12 -- Privileges 17

EXCEPTIONS

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ACTIONS BETWEEN THE SPOUSES

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CRIMINAL CASE WHERE ALLEGED VICTIM WAS THE LISTENING SPOUSE, OR A MINOR CHILD

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SEVERAL OTHER EXCEPTIONS SEE TEXAS EV. R. 504

2011 Chap. 12 -- Privileges 18

EXAMPLE

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“LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!”

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IF EX-WIFE BECOMES A WITNESS:

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SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED

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HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID

2011 Chap. 12 -- Privileges 19

PRIVILEGE NOT TO BE CALLED BY THE PROSECUTION

[TEX. RULE 504]

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BELONGS TO THE WITNESS- SPOUSE, NOT THE ACCUSED SPOUSE

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ENDS WITH DIVORCE

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DOES NOT APPLY WHERE WITNESS SPOUSE IS VICTIM

2011 Chap. 12 -- Privileges 20

MANY OTHER STATES

(AND MANY MOVIES)

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PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE

2011 Chap. 12 -- Privileges 21

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

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CAN’T BE REQUIRED TO TESTIFY CAN’T BE OBLIGED TO WRITE OUT A CONFESSION BUT: IF A PERSON WRITES A DOCUMENT ON HIS OWN INITIATIVE, THERE IS NO PRIVILEGE; THE DOCUMENT CAN BE SUBPOENAED, AND USED BY PROSECUTION

2011 Chap. 12 -- Privileges 22

THE PROBLEM OF FILES

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THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED GIVING THEM TO A LAWYER WON’T HELP BUT SOMETIMES, PRODUCING THEM IN RESPONSE TO SUBPOENA COULD HAVE EFFECT OF MAKING A FORCED STATEMENT -- >>

2011 Chap. 12 -- Privileges 23

EXAMPLE

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SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE FROM DRUG SALES”

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THIS SHOULD BE QUASHED, SINCE THE COMMAND IS PHRASED SUCH THAT COMPLIANCE WOULD AMOUNT TO A COMPELLED STATEMENT

2011 Chap. 12 -- Privileges 24

EXAMPLE 2

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SUBPOENA COMMANDING PRODUCTION OF “THE WEAPON YOU USED IN THE MAY 15 MURDER”

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ACT OF COMPLIANCE IS EQUIVALENT TO CONFESSION

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SHOULD BE QUASHED

2011 Chap. 12 -- Privileges 25

CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5TH

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PLAINTIFF INVOKING:

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IS APT TO BE NON-SUITED IN TEXAS CIVIL DEFENDANT INVOKING:

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WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5 TH IN TEXAS ALL OTHER PRIVILEGES ARE UNMENTIONABLE

2011 Chap. 12 -- Privileges 26

CLERGYMAN-PENITENT

[TEXAS RULE 505]

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WORKS SIMILARLY TO LAWYER CLIENT PRIVILEGE

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CIVIL AND CRIMINAL CASES

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MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE RELIGIONS?

2011 Chap. 12 -- Privileges 27

TRADE SECRET

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A QUASI-PRIVILEGE

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COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE”

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PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER

2011 Chap. 12 -- Privileges 28

PHYSICIAN-PATIENT PRIVILEGE

[TEXAS RULE 509]

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NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS

2011 Chap. 12 -- Privileges 29

PHYSICIAN-PATIENT PRIVILEGE

[TEXAS RULE 509]

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ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4):

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NO PRIVILEGE WHERE THE PATIENT’S CONDITION IS PART OF A PARTY’S CLAIM OR DEFENSE

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[WHEN WOULD IT NOT BE, AND RETAIN RELEVANCE ??]

2011 Chap. 12 -- Privileges 30

MENTAL HEALTH PROFESSIONALS

[TEXAS RULE 510]

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NO PRIVILEGE IN CRIMINAL CASES

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IN CIVIL CASES:

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TRACKS THE DOCTOR-PATIENT RULE

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INCLUDES DRUG-ABUSE WORKERS

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SAME GLARING EXCEPTION

2011 Chap. 12 -- Privileges 31

PARTY’S WORK PRODUCT

[FED. R. CIV. P. 26 (b)(3)]

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IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE PARTY’S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED

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LAWYER STUFF IS A BIG PART OF IT CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED

2011 Chap. 12 -- Privileges 32

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BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT

2011 Chap. 12 -- Privileges 33

TEX. R. CIV. P. 192

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IS SIMILAR TO FED. PRACTICE:

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COUNSEL IMPRESSIONS ARE CALLED “CORE” WORK PRODUCT, GENERALLY BLOCKED THE REST IS CALLED “OTHER WORK PRODUCT” AND CAN BE HAD BY SHOWING “SUBSTANTIAL NEED” MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT LIKELY IS “CORE”

2011 Chap. 12 -- Privileges 34

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WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES

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E.G., GRAND JURY SUBPOENA OVERRIDES

2011 Chap. 12 -- Privileges 35

JOURNALIST’S PRIVILEGE

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FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST

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TEXAS HAS A STATUTE CREATING THIS PRIVILEGE:

2011 Chap. 12 -- Privileges 36

JOURNALIST’S PRIVILEGE IN CIVIL CASES

Tex. Civ. Prac. & Rems. Code §22.021

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COVERS PERSONS WHO DO NEWS GATHERING OR DISSEMINATION

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FOR A SUBSTANTIAL PORTION OF THEIR LIVELIHOOD OR

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FOR SUBSTANTIAL FINANCIAL GAIN

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COVERS THEIR EMPLOYER COMPANIES

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ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS

2011 Chap. 12 -- Privileges 37

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THE PRIVILEGE:

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TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL

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TO REFUSE TO DISCLOSE SOURCES

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PUBLICATION OF THE INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER

2011 Chap. 12 -- Privileges 38

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LIMITS:

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COURT CAN ORDER DISCLOSURE BY JOURNALIST IF:

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NO OTHER WAY TO OBTAIN THE EVIDENCE SUBPOENA IS NARROWLY DRAFTED INTEREST OF JUSTICE OUTWEIGHS PUBLIC INTEREST IN NEWS FLOW

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THE NEWS ARTICLE, BROADCAST, ETC., ITSELF IS NOT PRIVILEGED (WILL BE ADMISSIBLE IF COMPLIANT WITH THE OTHER RULES OF EVIDENCE, ESPECIALLY HEARSAY)

2011 Chap. 12 -- Privileges 39

JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES

TEX. CODE. CRIM. PROC. ART. 38.11

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SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT:

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NO SOURCE PRIVILEGE IF A FELONY IS COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT

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NO SOURCE PRIVILEGE IF SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT

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NO SOURCE PRIVILEGE IF PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT

2011 Chap. 12 -- Privileges 40

2011 –

NO SOURCE PRIVILEGE IF INFO IS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY

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NO SOURCE PRIVILEGE IF DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM

Chap. 12 -- Privileges 41

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INFORMATION (OTHER THAN SOURCE) PRIVILEGE:

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TRACKS THE CIVIL RULE

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JUDGE CAN ORDER DISCLOSURE IF NECESSARY AND NARROWLY TAILORED

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INTER ALIA, MUST HAVE INDEPENDENT EVIDENCE THAT A CRIME HAS OCCURRED

2011 Chap. 12 -- Privileges 42

ABROGATION OF PRIVILEGES IN CHILD-ABUSE CASES

TEX. FAM. CODE §261.202

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ALL PRIVILEGES VANISH IN PROCEEDINGS “REGARDING THE ABUSE OR NEGLECT OF A CHILD” EXCEPT: ATTORNEY-CLIENT PRIVILEGE MAIN PURPOSE: TO BLOCK MARITAL COMMUNICATION PRIVILEGE

2011 Chap. 12 -- Privileges 43