CHAP 12 PRIVILEGES P JANICKE FALL 2011 Chap

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CHAP. 12 : PRIVILEGES P. JANICKE FALL 2011 Chap. 12 -- Privileges

CHAP. 12 : PRIVILEGES P. JANICKE FALL 2011 Chap. 12 -- Privileges

DEFINITION • A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK

DEFINITION • A PRIVILEGE IS A RIGHT OF SOME PERSON OR ENTITY TO BLOCK THE ADMISSION OF CERTAIN KINDS OF EVIDENCE IN A CASE – EVEN THOUGH RELEVANT – EVEN THOUGH CRUCIAL – EVEN THOUGH NO PREJUDICE UNDER R 403 2011 Chap. 12 -- Privileges 2

PURPOSE • TO FURTHER SOME SOCIETAL GOAL • REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF

PURPOSE • TO FURTHER SOME SOCIETAL GOAL • REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF 2011 Chap. 12 -- Privileges 3

ATTORNEY-CLIENT PRIVILEGE • A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING

ATTORNEY-CLIENT PRIVILEGE • 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 • THERE ARE NO EXCEPTIONS BASED ON NEEDS OF THE

HELL OR HIGH WATER • THERE ARE NO EXCEPTIONS BASED ON NEEDS OF THE OTHER SIDE – THEY CAN TRY TO DISCOVER THE FACTS SOME OTHER WAY • THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT – MALPRACTICE – ACTION TO COLLECT A FEE 2011 Chap. 12 -- Privileges 5

SO-CALLED CRIME/FRAUD “EXCEPTION” • WHERE CLIENT’S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN

SO-CALLED CRIME/FRAUD “EXCEPTION” • 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) • NOT REALLY AN EXCEPTION, BUT OFTEN CALLED ONE 2011 Chap. 12 -- Privileges 6

WHERE LAWYER DECLINES THE REPRESENTATION • NO EFFECT ON THE PRIVILEGE • NO RELATIONSHIP

WHERE LAWYER DECLINES THE REPRESENTATION • NO EFFECT ON THE PRIVILEGE • NO RELATIONSHIP NEEDED – SEE DEFINITION 2011 Chap. 12 -- Privileges 7

EAVESDROPPER • NO EFFECT – SEE DEFINITION : APPARENT CONFIDENTIALITY IS ENOUGH – SOME

EAVESDROPPER • NO EFFECT – SEE DEFINITION : APPARENT CONFIDENTIALITY IS ENOUGH – SOME OLDER CASES CONTRA • EAVESDROPPERS CAN BE ENJOINED 2011 Chap. 12 -- Privileges 8

BOTH SIDES OF CONVERSATION COVERED • TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED

BOTH SIDES OF CONVERSATION COVERED • 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 – E. G. : “HMMM! THEN YOU’RE GUILTY OF MURDER!” 2011 Chap. 12 -- Privileges 9

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

• MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS 2011 Chap. 12 -- Privileges 10

THE CLIENT “OWNS” THE PRIVILEGE • CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE

THE CLIENT “OWNS” THE PRIVILEGE • CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT • CAN DECIDE WHICH OF LAWYER’S HELPERS, IF ANY, SHOULD SEE IT 2011 Chap. 12 -- Privileges 11

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

WAIVER • ONLY BY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) • EXPRESSLY WAIVES – PERSONALLY AUTHORIZES DISCLOSURE OF THE COMMUNICATION – AUTHORIZES AGENT TO DISCLOSE THE COMMUNICATION • WAIVES BY CONDUCT – REVEALS THE COMMUNICATION TO OTHERS “OUTSIDE THE FAMILY” – HANDS OVER DOCUMENTS CONTAINING THE COMMUNICATION 2011 Chap. 12 -- Privileges 12

 • WAIVER BY CONDUCT: HALF-OPEN DOOR RULE – REVEALING PARTS IN TESTIMONY –

• WAIVER BY CONDUCT: HALF-OPEN DOOR RULE – REVEALING PARTS IN TESTIMONY – RELYING ON “ADVICE OF COUNSEL” TO DEFEAT CERTAIN REMEDIES – REVEALING ONE OPINION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC • NEW RULE 502 – CODIFIES THE HALF-OPEN RULE – OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM 2011 Chap. 12 -- Privileges 13

 • LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION – EVEN IF EMBARRASSING TO

• LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION – EVEN IF EMBARRASSING TO THE LAWYER • A RESULT OF CLIENT “OWNING” THE PRIVILEGE 2011 Chap. 12 -- Privileges 14

IMPACT OF WAIVER MADE IN A FEDERAL CASE • MAY OPERATE AS A WAIVER

IMPACT OF WAIVER MADE IN A FEDERAL CASE • MAY OPERATE AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER – IF THE TWO COMMUNICATIONS OUGHT “IN FAIRNESS” TO BE CONSIDERED TOGETHER 2011 Chap. 12 -- Privileges 15

IMPACT OF WAIVER: COMMON LAW AND STATE RULE • WAIVER AS TO ONE COMMUNICATION

IMPACT OF WAIVER: COMMON LAW AND STATE RULE • WAIVER AS TO ONE COMMUNICATION WAIVES AS TO ALL OTHER COMMUNICATIONS ON THE SAME TOPIC, UP TO THE DATE OF THE WAIVER • TO PREVENT PICK-AND-CHOOSE TACTIC 2011 Chap. 12 -- Privileges 16

TWO MARITAL PRIVILEGES [TEXAS RULE 504] • MARITAL COMMUNICATIONS – MADE DURING MARRIAGE UNDER

TWO MARITAL PRIVILEGES [TEXAS RULE 504] • MARITAL COMMUNICATIONS – MADE DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS – PRIVILEGE BELONGS TO THE SPEAKING SPOUSE – DOESN’T EXTEND TO CONTEMPORANEOUS ACTIONS – PRIVILEGE SURVIVES DIVORCE 2011 Chap. 12 -- Privileges 17

EXCEPTIONS • ACTIONS BETWEEN THE SPOUSES • CRIMINAL CASE WHERE ALLEGED VICTIM WAS THE

EXCEPTIONS • ACTIONS BETWEEN THE SPOUSES • CRIMINAL CASE WHERE ALLEGED VICTIM WAS THE LISTENING SPOUSE, OR A MINOR CHILD • SEVERAL OTHER EXCEPTIONS SEE TEXAS EV. R. 504 2011 Chap. 12 -- Privileges 18

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

EXAMPLE • “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!” • IF EX-WIFE BECOMES A WITNESS: – SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED – 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] • BELONGS TO

PRIVILEGE NOT TO BE CALLED BY THE PROSECUTION [TEX. RULE 504] • BELONGS TO THE WITNESS- SPOUSE, NOT THE ACCUSED SPOUSE • ENDS WITH DIVORCE • DOES NOT APPLY WHERE WITNESSSPOUSE IS VICTIM 2011 Chap. 12 -- Privileges 20

MANY OTHER STATES (AND MANY MOVIES) • PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE 2011

MANY OTHER STATES (AND MANY MOVIES) • PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE 2011 Chap. 12 -- Privileges 21

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION • CAN’T BE REQUIRED TO TESTIFY • CAN’T BE OBLIGED

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION • 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 • THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED •

THE PROBLEM OF FILES • 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 • SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE

EXAMPLE • SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE FROM DRUG SALES” • 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 • SUBPOENA COMMANDING PRODUCTION OF “THE WEAPON YOU USED IN THE MAY

EXAMPLE 2 • SUBPOENA COMMANDING PRODUCTION OF “THE WEAPON YOU USED IN THE MAY 15 MURDER” • ACT OF COMPLIANCE IS EQUIVALENT TO CONFESSION • SHOULD BE QUASHED 2011 Chap. 12 -- Privileges 25

CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5 TH • PLAINTIFF INVOKING: – IS

CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5 TH • PLAINTIFF INVOKING: – IS APT TO BE NON-SUITED IN TEXAS • CIVIL DEFENDANT INVOKING: – 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] • WORKS SIMILARLY TO LAWYERCLIENT PRIVILEGE • CIVIL AND CRIMINAL

CLERGYMAN-PENITENT [TEXAS RULE 505] • WORKS SIMILARLY TO LAWYERCLIENT PRIVILEGE • CIVIL AND CRIMINAL CASES • MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE RELIGIONS? 2011 Chap. 12 -- Privileges 27

TRADE SECRET • A QUASI-PRIVILEGE • COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE

TRADE SECRET • A QUASI-PRIVILEGE • COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE” • PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER 2011 Chap. 12 -- Privileges 28

PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS

PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS 2011 Chap. 12 -- Privileges 29

PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO

PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4): – NO PRIVILEGE WHERE THE PATIENT’S CONDITION IS PART OF A PARTY’S CLAIM OR DEFENSE – [WHEN WOULD IT NOT BE, AND RETAIN RELEVANCE ? ? ] 2011 Chap. 12 -- Privileges 30

MENTAL HEALTH PROFESSIONALS [TEXAS RULE 510] • NO PRIVILEGE IN CRIMINAL CASES • IN

MENTAL HEALTH PROFESSIONALS [TEXAS RULE 510] • NO PRIVILEGE IN CRIMINAL CASES • IN CIVIL CASES: – TRACKS THE DOCTOR-PATIENT RULE – INCLUDES DRUG-ABUSE WORKERS – SAME GLARING EXCEPTION 2011 Chap. 12 -- Privileges 31

PARTY’S WORK PRODUCT [FED. R. CIV. P. 26 (b)(3)] • IS NOT A PRIVILEGE,

PARTY’S WORK PRODUCT [FED. R. CIV. P. 26 (b)(3)] • IS NOT A PRIVILEGE, BUT SOMEWHAT LIKE ONE • PARTY’S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED – LAWYER STUFF IS A BIG PART OF IT • CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED 2011 Chap. 12 -- Privileges 32

 • BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT 2011 Chap. 12 --

• BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT 2011 Chap. 12 -- Privileges 33

TEX. R. CIV. P. 192 • IS SIMILAR TO FED. PRACTICE: – COUNSEL IMPRESSIONS

TEX. R. CIV. P. 192 • IS SIMILAR TO FED. PRACTICE: – 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

 • WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES – E. G. ,

• WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES – E. G. , GRAND JURY SUBPOENA OVERRIDES 2011 Chap. 12 -- Privileges 35

JOURNALIST’S PRIVILEGE • FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES

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

JOURNALIST’S PRIVILEGE IN CIVIL CASES Tex. Civ. Prac. & Rems. Code § 22. 021 • COVERS PERSONS WHO DO NEWS GATHERING OR DISSEMINATION – FOR A SUBSTANTIAL PORTION OF THEIR LIVELIHOOD OR – FOR SUBSTANTIAL FINANCIAL GAIN • COVERS THEIR EMPLOYER COMPANIES • ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS 2011 Chap. 12 -- Privileges 37

 • THE PRIVILEGE: – TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT

• THE PRIVILEGE: – TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL – TO REFUSE TO DISCLOSE SOURCES • PUBLICATION OF THE INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER 2011 Chap. 12 -- Privileges 38

 • LIMITS: – COURT CAN ORDER DISCLOSURE BY JOURNALIST IF: • NO OTHER

• LIMITS: – COURT CAN ORDER DISCLOSURE BY JOURNALIST IF: • NO OTHER WAY TO OBTAIN THE EVIDENCE • SUBPOENA IS NARROWLY DRAFTED • INTEREST OF JUSTICE OUTWEIGHS PUBLIC INTEREST IN NEWS FLOW – 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 •

JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART. 38. 11 • SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT: – NO SOURCE PRIVILEGE IF A FELONY IS COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT – NO SOURCE PRIVILEGE IF SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT – NO SOURCE PRIVILEGE IF PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT 2011 Chap. 12 -- Privileges 40

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

– NO SOURCE PRIVILEGE IF INFO IS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY – NO SOURCE PRIVILEGE IF DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM 2011 Chap. 12 -- Privileges 41

 • INFORMATION (OTHER THAN SOURCE) PRIVILEGE: – TRACKS THE CIVIL RULE – JUDGE

• INFORMATION (OTHER THAN SOURCE) PRIVILEGE: – TRACKS THE CIVIL RULE – JUDGE CAN ORDER DISCLOSURE IF NECESSARY AND NARROWLY TAILORED • 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 • ALL

ABROGATION OF PRIVILEGES IN CHILD-ABUSE CASES TEX. FAM. CODE § 261. 202 • 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