A privilege is a rule of law that entitles the claimant to either refuse to disclose information or to prevent another from disclosing information.  It is often held that privileges should be narrowly construed in light of their effect on the truth-finding function of litigation.  In some jurisdictions, and in the federal courts, privileges may be judicially created.{footnote} [3357]  FRE 501; Check United States v. Allery, 526 F.2d 1362 (8th Cir. 1975)(G).{/footnote}  In others, privileges are purely statutory.{footnote} [3358]  Cal. § 911.{/footnote}

Whether a new privilege should be recognized has been said to turn on two questions: Is the confidential relationship at issue one which the community ought to foster, and would the harm from disclosure be greater than the harm to the truth-seeking function of litigation.{footnote} [3359]  Wigmore § 2285 at 527.  See also Scott v. McDonald, 70 F.R.D. 568, 573 (N.D. Geo. 1976) (physician review proceedings).{/footnote}

The applicability of a privilege is determined by the court, and the court may consider inadmissible evidence in making its determiniation.{footnote} [3360]  FRE 104(a), 1101(d)(1).{/footnote}  See also ADMISSIBILITY–What Evidence May Be Considered As Foundation?

Choice of Law

{ The following text is repeated in part at ACCOUNTANT-CLIENT, ATTY-CLIENT}

Federal Courts.  The federal courts look to federal law in deciding privilege issues in criminal cases,{footnote}FRE 501; United States v. Kovel, 296 F.2d 918, 921 n. 2 (2d Cir. 1961); United States v. Allery, 526 F.2d 1362 (8th Cir. 1975); United States v. Green, 216 App. D.C. 329, 670 F.2d 1148 (D.C Cir. 1981).{/footnote} where a federal question is involved{footnote}FRE 501; Lewis v. Radcliff Materials, Inc., 74 F.R.D. 102 (5th Cir. 1977).{/footnote} or where a constitutional privilege is asserted.{footnote} [3363]  FRE 501; Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389 n. 2 (2d Cir. 1976){/footnote}  The revisions to the Federal Rules of Evidence drafted by the Judicial Conference and approved by the Supreme Court in 1972 recognized  a number of specific privileges: required reports, attorney-client, psychotherapist-patient, husband-wife, clergyman-penitent, political votes, trade secrets, state secrets and other official information, and identity of informers.{footnote}Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 230-58 (1972).{/footnote}  Congress rejected these in favor of a general rule granting federal courts discretion to recognize privileges “in the light of reason and experience.”{footnote}FRE 501.  See also Trammel v. United States, 445 U.S. 40, 47 [(____)](Rule 501 requires federal courts to “continue the evolutionay developmet of testimonial privileges).{/footnote}

In diversity cases, the federal courts apply state law insofar as the relevant claim or defense is controlled by state law.{footnote} [3366]  FRE 501; Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 71 F.R.D. 388, 389 n. 2 (2d Cir. 1976); Scott v. McDonald, 70 F.R.D. 568 (2d Cir. 1976); Samuelson v. Susen, 576 F.2d 546 (3d CIr. 1978); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (5th Cir. 1967); Armour International Co. v. Worldwide Cosmetics, Inc., 689 F.2d 134 (7th Cir. 1982).

Check 95 ALR2d 320; 48 ALR Fed. 686.{/footnote}  Where there is a choice of law to be made, the court must apply the choice-of-law rules of the state where it sits (see below).{footnote}See Klaxon Co. v. Stentor Co., 313 U.S. 487 (1941).{/footnote}

State Choice of Law Rules.  There is a split of authority as to whether privileges are procedural or substantive law.{footnote} {/footnote} Federal cases before FRE 501 generally held that privileges were substantive law.{footnote}[3369] Massachusetts Mutual Life Ins. Co. v. Brei, 311 F.2d 463 (2d Cir. 1962); Palmer v. Fisher, 228 F.2d 603, 608-09? (7th Cir. 1955); Miller v. Pacific Mutual Life Ins. Co., 116 F. Supp. 365, 368 (W.D. Mich 1953).  Contra Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953); Brookshire v. Pennsylvania  R. Co., 14 F.R.D. 154 (N.D. Ohio 1953).
{/footnote}  State courts are divided on the question.{footnote}Consolidation Coal Co. v. Bucyrus-Erie Co., 416 N.E.2d 1090, 1094 n. 5 (___).{/footnote} If procedural, then the law of the forum state will be applied.  Ordinarily this will be wherever the trial court sits, but not always:  where the privilege is asserted in a deposition taken in another state, and a local court (federal or state) is called upon to rule, that court may apply local law as the law of the “forum”.{footnote}See Palmer v. Fisher, 228 F.2d 603 (7th Cir. 1955); Application of Franklin Washington Trust Co., 148 N.Y.S. 2d 731 (S. Ct. 1956).  Contra Metropolitan Life Ins. Co. v. Kaufman, 104 Colo. 13, 87 P. 2d 758 (1939).  See generally Comment, Privileged Communications Under Rule 26(b): Conflict of Laws in Diversity Cases, 23 U. Chi. L. Rev. 704 (1956).

{/footnote}

Under the Restatement of Conflicts 2d, on the other hand, the law of the state with the most significant contacts with the communication applies to the question of admissibility, unless there is some countervailing policy in the forum state.{footnote}Consolidation Coal Co. v. Bucyrus-Erie Co., 416 N.E.2d
1090, 1094 n. 5 (___).
See also Hare v. Family Publications Service, Inc., 334 F. Supp. 953 (D.C. Md. 1971).  In Hare, the court applied Maryland choice of law rules, which ordinarily would have resulted in the application of New York privilege law.  But because New York did not recognize an accoutant-client privilege and Maryland did, the court applied the Maryland privilege on the grounds that following New York law would violate Maryland public policy).{/footnote}

Retroactive Application.  So long as a communication was made in confidence, the law as it exists at the time of trial controls, not the law at the time of the communication.{footnote}Scott v. McDonald, 70 F.R.D. 568, 573 (N.D. Geo. 1976).{/footnote}

Standing to Assert or Waive

The “holder” of a privilege is generally the only one who may assert it–strangers to the confidential relationship generally cannot (but see below).{footnote}Check 2 ALR2d 645.{/footnote}  The holder of a privilege is that person in the confidential relationship who is the subject of the law’s concern for confidentialty.  It is not always the person who uttered the confidential communication (e.g., reporter is holder of privilege from disclosing source, law client holder of privilege from disclosing legal advice given).  Where a privilege is held jointly, any one of the holders may assert the privilege.

Assertion by a Representative.  Persons representing or acting on behalf of the holder of a privilege may also assert or waive it.  These include the holder’s attorney, conservator, guardian, executor, administrator or bankruptcy trustee.{footnote}Weck v. District Court of Second Judicial District, 161 Colo. 384, 422 P.2d 46 (1967)(accountant-client privilege)

31 ALR3d 557.{/footnote}

Assertion by a Stranger.   Where neither the holder of the privilege nor their representative is present to assert a privilege, the court may prevent disclosure either on its own motion or on the motion of a party.{footnote} [3376]  Cal. § 916.{/footnote}  On appeal, however, only the holder or their representative may claim as error the disclosure of a privileged communication.{footnote} [3377]  Cal. § 918.{/footnote}

Burden of Proof

The claimant of a privilege must establish its applicability by a preponderance of the evidence.{footnote}Robinson v. United States, 144 F.2d 392 (9th Cir. 1944).  Check In re Fischel, 557 F.2d 209 (9th Cir. 1977).{/footnote}

Does the Privilege Expire?

The spousal privilege is held by some states to expire on the death of one of the spouses, and some courts hold that where the holder is deceased, any privilege expires once the estate is resolved.

Confidentiality

To be protected, a communication which is allegedly privileged must have been made in confidence, although any communication made in the course of a privileged relationship is presumed to be confidential.{footnote} [3379]  Cal. § 917.{/footnote}  See also Waiver, below.

Waiver

To be privileged, communications must not only have been made in confidence but they must also be kept confidential.  By disclosing or allowing the disclosure of a communication, a party may forever waive a privilege.  Waiver by one party to a joint privilege does not consitute a waiver on the part of the other holders.{footnote} [3380]  Cal. § 912(c).{/footnote}

Waiver may take several forms.

Voluntary Disclosure.  Where the holder voluntarily discloses or allows to be disclosed all or a significant part of a privileged communication to one with whom he is not in a privileged relationship, the holder is held to have waived the privilege.{footnote}Velsicol Chemical Corp. v. Parsons, 561 F.2d 671 (7th Cir. 1977)(G).{/footnote}  Waiver will not be found where disclosure was involuntary, including where disclosure was ordered by a court.{footnote} [3382]  Check Cal. § 919.{/footnote}

Presence of Others.  The presence of a third person when a communication is made will operate to waive the privilege unless the third person is an employee or agent of the either party to the communication or is someone else whose presence is reasonably necessary.{footnote}See Ill. Rev. Stat. ch. 110 § 52 (a privilege is not waived because made in the presence of interpreter).{/footnote}

Failure to Assert.  Where privileged evidence is offered, the holder must assert the privilege or be held to have waived it, so long as the holder had an opportunity to object.  See OBJECTIONS; APPEAL–Failure to Object and ‘Plain Error’.

By Contract. (e.g., insurance company requires waiver of physician-patient privilege)

Eavesdroppers.  The presence of an eavesdropper is generally held to waive a privilege,{footnote}People v. Simpson, 129 Ill. App. 3d 822, 473 N.E.2d 350 (1st Dist. 1984).{/footnote} and the eavesdropper will be permitted to disclose.  Most(?) courts hold that there need not be a showing that the party claiming the privilege was negligent in allowing the eavesdropping,{footnote}United States v. Landof, 591 F.2d 36 (9th Cir. 1978)(G); 63 ALR 107 (G).{/footnote} but the trend is to require such a showing.{footnote} [3386]  Cal. § 954.{/footnote}

Where the eavesdropping is performed by law enforcement (or an operative) and is unlawful, then the evidence thus obtained will in some cases be excluded.

Disclosure Required in Criminal Cases

A bona fide privilege might in a criminal case be set aside in order to permit the accused to present evidence necessary to his defense.{footnote}See, e.g., State v. Roma, 357 A.2d 37 (N.J. 1926)(G).{/footnote}  Note that such evidence may nonetheless be barred by the hearsay rule.

Adverse Inferences

As a general rule, no adverse inferences may be drawn from the assertion of a privilege.  But see SELF-INCRIMINATION, PRIVILEGE AGAINST–Adverse Inferences.  Parties may obtain a cautionary instruction to that effect, and no contrary argument to the jury is permitted.{footnote} [3388]  Cal. § 913.{/footnote}

Related Articles

ACCOUNTANT-CLIENT PRIVILEGE; SELF-INCRIMINATION, PRIVILEGE AGAINST; ADMISSIBILITY–What Evidence May Be Considered?; ATTORNEY-CLIENT PRIVILEGE; GOVERNMENTAL PRIVILEGES; INSURED-INSUROR COMMUNICATIONS; MARITAL EXCLUSIONARY RULES; PARENT-CHILD PRIVILEGE; PEER REVIEW PRIVILEGE; PHYSICIAN-PATIENT PRIVILEGE; PSYCHOTHERAPIST-PATIENT PRIVILEGE; PUBLIC AID RECORDS; SCHOLAR’S PRIVILEGE; SEXUAL ASSAULT–Victim-Counselor Privilege; SOCIAL WORKER-CLIENT PRIVILEGE; SPEECH OR DEBATE CLAUSE PRIVILEGE; STENOGRAPHER-EMPLOYER PRIVELEGE; TAX PREPARER’S PRIVILEGE; TAX RETURNS.