CHAP 12 PRIVILEGES Prof JANICKE FALL 2020 DEFINITION

CHAP. 12 : PRIVILEGES Prof. JANICKE FALL 2020

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 THE EV. IS RELEVANT – EVEN THOUGH THE EV. IS CRUCIAL 2020 Chap. 12 -- Privileges 2

PURPOSE • TO FURTHER SOME SOCIETAL GOAL 2020 Chap. 12 -- Privileges 3

FEDERAL STANDARDS ON PRIVILEGES • NO PRIVILEGE DEFINITION RULES WERE ACTUALLY ENACTED • THE U. S. JUDICIAL CONFERENCE PROPOSED THE 500 -SERIES OF RULES, BUT THEY DID NOT MAKE IT THROUGH CONGRESS 2020 Chap. 12 -- Privileges 4

• THESE PROPOSALS ARE NOW KNOWN AS “STANDARDS” – [ARE POSTED IN COURSE MATERIALS] 2020 Chap. 12 -- Privileges 5

TURN TO TEXAS RULES ON PRIVILEGES 2020 Chap. 12 -- Privileges 6

TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE • ASSIGNED: TX RULE 503 2020 Chap. 12 -- Privileges 7

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 SAID OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL 2020 Chap. 12 -- Privileges 8

EXCEPTIONS VERY NARROW • NEEDS OF THE OTHER SIDE DO NOT CREATE ANY EXCEPTION TO THE PRIVILEGE • THE ONLY SIGNIFICANT EXCEPTION IS: A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT – MALPRACTICE – ACTION TO COLLECT A FEE 2020 Chap. 12 -- Privileges 9

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) 2020 Chap. 12 -- Privileges 10

WHEN LAWYER THEN DECLINES THE REPRESENTATION • THE PRIVILEGE STANDS, PER THE DEFINITION • NO LAWYER-CLIENT RELATIONSHIP IS NEEDED 2020 Chap. 12 -- Privileges 11

UNKNOWN EAVESDROPPER • NO EFFECT – APPARENT CONFIDENTIALITY IS ENOUGH – SOME OLDER CASES CONTRA 2020 Chap. 12 -- Privileges 12

BOTH SIDES OF CONVERSATION ARE NOW INCLUDED • TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED • HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND IS NOW CALLED DERIVATIVELY PRIVILEGED – INDIRECT REVELATION OF THE CLIENT’S STATEMENT 2020 Chap. 12 -- Privileges 13

THE CLIENT “OWNS” THE PRIVILEGE, MEANING: 1. ONLY SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT, i. e. , TO WAIVE THE PRIVILEGE 2. ONLY SHE CAN DECIDE WHICH OF LAWYER’S HELPERS, OR HER OWN HELPERS, SHOULD LEARN OF THE COMMUNICATION WHILE 2020 PRESERVINGChap. IT 12 -- Privileges 14

THE PROBLEM OF WAIVER • ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE • CLIENT CAN WAIVE BY TAKING ACTION: – BY DISCLOSURE; or – BY AUTHORIZING DISCLOSURE OF THE COMMUNICATION; or – BY DESIGNATING AN AGENT (e. g. , the lawyer) TO DECIDE ON DISCLOSURE OF THE COMMUNICATION • CLIENT’S DESIGNATION OF POWER TO WAIVE CAN BE IMPLICIT: 2020 – LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW Chap. 12 -- Privileges 15 OTHERWISE

NO RIGHT TO PICK-AND-CHOOSE WAIVERS • COMMON LAW: KNOWINGLY WAIVING AS TO ONE COMMUNICATION OPERATES AS A WAIVER ON ALL OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER • NOW: WAIVER RE. OTHERS THAT IN FAIRNESS SHOULD BE CONSIDERED 2020 Chap. 12 -- Privileges 16

CLIENT DECISION ON WAIVER • LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION – EVEN IF EMBARRASSING TO THE LAWYER – THIS IS A RESULT OF CLIENT “OWNING” THE PRIVILEGE 2020 Chap. 12 -- Privileges 17

• WAIVER BY CONDUCT: HALF-OPEN DOOR RULE – REVEALING PARTS IN TESTIMONY – REVEALING ONE LAWYER COMMUNICATION WHEN THERE ARE OTHERS ON THE SAME TOPIC • WAIVER BY PRODUCING PRIVILEGED DOCUMENTS IN LITIGATION R. 502 2020 – CODIFIES THE HALF-OPEN RULE – OTHER COMMUNICATIONS THAT OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM WILL HAVE TO BE PRODUCED Chap. 12 -- Privileges 18

DISCLOSURE IN LITIGATION • IS NOW LARGELY PROTECTED BY RULE • ASSIGNED: FED. R. 502(b); TEX. R. 511(b)(2) 2020 Chap. 12 -- Privileges 19

WAIVER BY AFFIRMATIVE USE OF COUNSEL OPINIONS • USING LAWYER’S ADVICE TO GET A BENEFIT IN COURT – IS AN INVOLUNTARY WAIVER – E. G. , TESTIFYING TO AN OPINION OF COUNSEL, TO SHOW GOOD FAITH OR LACK OF FRAUD • LAWYER CAN THEN BE DEPOSED, MUST ANSWER RE. THE WHOLE TOPIC • OTHER LAWYER OPINIONS ON THE TOPIC ARE ALSO WAIVED 2020 Chap. 12 -- Privileges 20

PROBLEMS/CASES • • 12 A 12 B 12 C Meredith 12 D Suburban Upjohn Osterhoudt 2020 (cont’d) Chap. 12 -- Privileges 21

PROBLEMS/CASES • 12 E • 12 F • 12 G 2020 Chap. 12 -- Privileges 22

MORE TEXAS RULES OF EVIDENCE

TWO MARITAL PRIVILEGES 1. THE “MARITAL COMMUNICATION” PRIVILEGE; ASSIGNED: TEXAS RULE 504(a) – WORDS SPOKEN DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS – THIS PRIVILEGE BELONGS TO THE SPEAKING SPOUSE – DOES NOT EXTEND TO CONTEMPORANEOUS ACTIONS OF THE SPEAKING SPOUSE – PRIVILEGE REMAINS INTACT FOR PREDIVORCE COMMUNICATIONS 2020 Chap. 12 -- Privileges 24

HOW IT WORKS • IN COURT, – BE A WITNESS AND STILL REFUSE TO ANSWER QUESTIONS ABOUT WHAT HE/SHE SAID – THE SPOUSE WHO SPOKE CAN BLOCK THE OTHER SPOUSE, IF A WITNESS, FROM REVEALING WHAT THE SPEAKING SPOUSE SAID 2020 Chap. 12 -- Privileges 25

2. THE PRIVILEGE TO REFUSE TO BE SUMMONED BY GOV’T • ASSIGNED: TEX. RULE 504(b). THIS PRIV. BELONGS TO THE WITNESS-SPOUSE, NOT THE ACCUSED SPOUSE; IT IS HER CHOICE TO WAIVE – TEXAS AND FED. RULE (TRAMMEL CASE) ARE THE SAME • THIS PARTICULAR PRIVILEGE ENDS WITH DIVORCE • DOES NOT APPLY WHERE WITNESS-SPOUSE IS 2020 Chap. 12 -- Privileges 26 THE ALLEGED VICTIM

• THE NON-ACCUSED SPOUSE (WIFE) MUST TESTIFY IF SUMMONED BY THE ACCUSED SPOUSE (HUSBAND) • HER PRIVILEGE IS TO REFUSE TO BE A WITNESS FOR THE PROSECUTION 2020 Chap. 12 -- Privileges 27

MANY OTHER STATES, AND COMMON LAW • OPPOSITE OF THE TEXAS AND FEDERAL RULE • THERE, THE PRIVILEGE TO PREVENT THE WIFE FROM TESTIFYING BELONGS TO THE HUSBAND 2020 Chap. 12 -- Privileges 28

• Trammel • 12 H • Montgomery 2020 Chap. 12 -- Privileges 29

EXCEPTIONS: NO SPOUSAL PRIVILEGES IN - • ACTIONS BETWEEN THE SPOUSES • CRIMINAL CASE WHERE LISTENING SPOUSE WAS THE ALLEGED VICTIM • A FEW OTHER SITUATIONS 2020 Chap. 12 -- Privileges 30

REVIEW EXAMPLE: • HUSBAND: “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!” • IF WIFE BECOMES A PROS. WITNESS (HER CHOICE): 1. SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED, but 2. HUSBAND CAN PREVENT HER FROM TESTIFYINGChap. TO 12 --WHAT HE SAID 2020 Privileges 31

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION • D CAN’T BE REQUIRED TO TESTIFY • D CAN’T BE OBLIGED TO WRITE OUT A CONFESSION • BUT: IF D WROTE A DOCUMENT ON HIS OWN INITIATIVE, NO SELF-INCRIM. PRIVILEGE – ABSENT SOME OTHER PRIVILEGE, IT CAN BE SUBPOENAED AND USED BY THE PROSECUTION 2020 Chap. 12 -- Privileges 32

COMPELLED CONDUCT • IS NOT PROTECTED – GIVING BODILY FLUIDS SAMPLES – GIVING HANDWRITING SAMPLE – GIVING DNA SAMPLE 2020 Chap. 12 -- Privileges 33

THE PROBLEM OF BUSINESS FILES • THEY ARE CREATED VOLUNTARILY, SO ARE NOT PROTECTED BY THIS PRIVILEGE • GIVING THEM TO A LAWYER WON’T HELP! [HAPPENS OFTEN] 2020 Chap. 12 -- Privileges 34

TEXAS CIVIL CASES: JUDICIAL COMMENT ON INVOKING “THE 5 TH” • ASSIGNED: Tex. R. 513(c) 2020 Chap. 12 -- Privileges 35

HOW THE TEXAS RULE WORKS • CIVIL PLAINTIFF INVOKING 5 TH : – IS APT TO BE NON-SUITED IN TEXAS • CIVIL DEFENDANT INVOKING: – WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5 TH AMENDMENT IN TEXAS • ALL OTHER PRIVILEGES REMAIN 2020 UNMENTIONABLE Chap. 12 -- Privileges 36

CLERGYMAN-PENITENT • ASSIGNED: TEXAS RULE 505 • WORKS SIMILARLY TO LAWYERCLIENT PRIVILEGE • APPLIES IN BOTH CIVIL AND CRIMINAL CASES 2020 Chap. 12 -- Privileges 37

TRADE SECRET • ASSIGNED: TEXAS RULE 507 • ONLY A QUASI-PRIVILEGE • COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE” • PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER 2020 Chap. 12 -- Privileges 38

PHYSICIAN-PATIENT PRIVILEGE • ASSIGNED: TEXAS RULE 509 • NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS and 2020 > > > Chap. 12 -- Privileges 39

PHYSICIAN-PATIENT PRIVILEGE • ALMOST NONEXISTENT EVEN IN CIVIL CASES, DUE TO EXCEPTION (e)(4) OF THE RULE: – NO PRIVILEGE WHERE THE PATIENT’S CONDITION IS “PART OF A PARTY’S CLAIM OR DEFENSE” – WHEN WOULD IT NOT BE? ? 2020 Chap. 12 -- Privileges 40

MENTAL HEALTH PROFESSIONALS • ASSIGNED: TEXAS RULE 510 • INCLUDES DRUG-ABUSE WORKERS AS WELL AS DOCTORS • BUT: SAME LARGE EXCEPTIONS – NO PRIVILEGE IN CRIMINAL CASES – ALMOST NONE IN CIVIL CASES (IF PART OF A PARTY’S CLAIM OR DEFENSE) 2020 Chap. 12 -- Privileges 41

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 • CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED 2020 Chap. 12 -- Privileges 42

• MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE] >>> 2020 Chap. 12 -- Privileges 43

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” • LWYR MEMO TO FILE IS WORK PRODUCT, NOT PRIVILEGED; BUT CAN CONTAIN “CORE” INFO 2020 Chap. 12 -- Privileges 44

• UNSETTLED: WHETHER WORK PRODUCT HAS ANY PROTECTION IN CRIMINAL CASES • IF NO W. P. PROTECTION, STILL HAVE TO PROTECT A/C PRIVILEGES 2020 Chap. 12 -- Privileges 45

JOURNALIST’S PRIVILEGE • FEDERAL CASE LAW CREATES A QUASI-PRIVILEGE: MUST EXHAUST OTHER POSSIBLE AVENUES OF EVIDENCE FIRST • TEXAS HAS A STATUTE CREATING THIS QUASI-PRIVILEGE >>> 2020 Chap. 12 -- Privileges 46

JOURNALIST’S PRIVILEGE IN CIVIL CASES ASSIGNED: Tex. Civ. Prac. & Rems. Code § 22. 021 • WHO IS A “JOURNALIST”? 2020 Chap. 12 -- Privileges 47

• THIS PRIVILEGE HAS TWO PRONGS: 1. TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, EVEN IF NOT CONFIDENTIAL 2. TO REFUSE TO DISCLOSE SOURCES • ** NOTE: THE JOURNALIST’S PUBLISHING OF THE COLLECTED INFORMATION IS NOT A WAIVER – CAN’T GET HIM TO CONFIRM 2020 Chap. 12 -- Privileges 48

• LIMITS IN THE STATUTE 2020 Chap. 12 -- Privileges 49

JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART. 38. 11 • SIMILAR TO THE CIVIL PRIVILEGE, EXCEPT: • NO SOURCE PRIVILEGE IF: 1. A FELONY IS COMMITTED IN JOURNALIST’S PRESENCE, AND NO OTHER WAY TO PROVE IT; or 2. SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT; or 2020 Chap. 12 -- Privileges 50

3. PROBABLE CAUSE EXISTS THAT THE SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT; or 4. INFO WAS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY; or 5. DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM 2020 Chap. 12 -- Privileges 51

INFORMATION OTHER THAN SOURCE – CRIMINAL RULE TRACKS THE CIVIL RULE – JUDGE CAN ORDER DISCLOSURE IF NECESSARY AND NARROWLY TAILORED • E. G. , MUST HAVE INDEPENDENT EVIDENCE THAT A CRIME HAS OCCURRED 2020 Chap. 12 -- Privileges 52

ABROGATION OF NEARLY ALL 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 FOR ABROGATING: TO BLOCK BOTH SPOUSES’ MARITAL PRIVILEGES [Cf. R. 504] 2020 Chap. 12 -- Privileges 53