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CHAP. 12 : PRIVILEGES

CHAP. 12 : PRIVILEGES. Prof. JANICKE FALL 2016. 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 R403. PURPOSE. TO FURTHER SOME SOCIETAL GOAL

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CHAP. 12 : PRIVILEGES

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  1. CHAP. 12 :PRIVILEGES Prof. JANICKE FALL 2016

  2. 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 R403 Chap. 12 -- Privileges

  3. PURPOSE • TO FURTHER SOME SOCIETAL GOAL • REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF • ENCOURAGING CERTAIN KINDS OF HUMAN COMMUNICATIONS BY KEEPING THEM OUT OF THE COURTS Chap. 12 -- Privileges

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

  5. THESE PROPOSALS ARE NOW KNOWN AS “STANDARDS” • NOT OFFICIALLY “RULES” • BUT THEY CARRY A LOT OF WEIGHT IN THE COURTS • [ARE POSTED IN COURSE MATERIALS] Chap. 12 -- Privileges

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

  7. TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE • RULE 503 Chap. 12 -- Privileges

  8. ATTORNEY-CLIENT PRIVILEGE • A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSEOF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON SAID OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL Chap. 12 -- Privileges

  9. EXCEPTIONS VERY NARROW • NEEDS OF THE OTHER SIDE DO NOT CREATE ANY EXCEPTION TO THE PRIVILEGE • 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 Chap. 12 -- Privileges

  10. 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 Chap. 12 -- Privileges

  11. WHEN LAWYER THEN DECLINES THE REPRESENTATION • THE PRIVILEGE STANDS, PER THE DEFINITION • NO LAWYER-CLIENT RELATIONSHIP IS NEEDED • PRIVILEGE DERIVES FROM THE PURPOSE OF THE COMMUNICATION Chap. 12 -- Privileges

  12. UNKNOWN EAVESDROPPER • NO EFFECT • APPARENT CONFIDENTIALITY IS ENOUGH • SOME OLDER CASES CONTRA • EAVESDROPPERS CAN BE ENJOINED TO MAINTAIN SILENCE Chap. 12 -- Privileges

  13. BOTH SIDES OF CONVERSATION ARE INCLUDED • TRADITIONALLY, ONLY WHAT THE CLIENT SAID WAS PRIVILEGED • HOWEVER, WHAT THE LAWYER SAID USUALLY INHERENTLY REVEALS WHAT THE CLIENT SAID, AND WAS CALLED DERIVATIVELY PRIVILEGED • E.G. : “HMMM! THEN I THINK YOU’RE GUILTY OF MURDER!” Chap. 12 -- Privileges

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

  15. THE CLIENT “OWNS” THE PRIVILEGE, MEANING: • SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT • SHE CAN DECIDE WHICH OF LAWYER’S HELPERS, OR HER OWN HELPERS, SHOULD SEE IT Chap. 12 -- Privileges

  16. THE PROBLEM OF WAIVER • ONLY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) CAN WAIVE • WAIVES BY ACTING: • BY DISCLOSURE; or • PERSONALLY AUTHORIZES DISCLOSURE OF THE COMMUNICATION; or • AUTHORIZES AN AGENT TO DECIDE ON DISCLOSURE OF THE COMMUNICATION • WAIVES BY IMPLICATION: • LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE Chap. 12 -- Privileges

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

  18. WAIVER BY CONDUCT: HALF-OPEN DOOR RULE • REVEALING PARTS IN TESTIMONY • REVEALING ONE OPINION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC • WAIVER BY PRODUCING IN LITIGATION R. 502 • CODIFIES THE HALF-OPEN RULE • OTHER COMMUNICATIONS THAT OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM Chap. 12 -- Privileges

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

  20. NO PICK-AND-CHOOSE WAIVERS • WAIVING AS TO ONE COMMUNICATION USUALLY OPERATES AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER Chap. 12 -- Privileges

  21. MAY BE SOME RELIEF FROM THIS “SPREADING STAIN” OF WAIVER, IF ACCIDENTAL • COURT ORDER ON THIS IS BINDING • PARTIES’ AGREEMENT IS BINDING, AT LEAST FOR THIS CASE Chap. 12 -- Privileges

  22. TEXAS RULE 503 • WALK THROUGH ALL PHRASES OF THIS RULE -- Chap. 12 -- Privileges

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

  24. PROBLEMS/CASES • Zolin • 12E Chap. 12 -- Privileges

  25. MORE TEXAS RULES OF EVIDENCE

  26. TWO MARITAL PRIVILEGES[TEXAS RULE 504] • THE “MARITAL COMMUNICATION” PRIVILEGE • MADE DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS • PRIVILEGE BELONGS TO THE SPEAKING SPOUSE • DOES NOT EXTEND TO CONTEMPORANEOUS ACTIONS • PRIVILEGE SURVIVES DIVORCE Chap. 12 -- Privileges

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

  28. EXAMPLE • HUSBAND: “LOOK HERE, HONEY, AT ALL THIS MONEY I ROBBED FROM THE BANK!” • IF EX-WIFE BECOMES A TRIAL WITNESS: • SHE CAN BE COMPELLED TO TESTIFY TO SEEING MONEY DUMPED BY HUSBAND ON THE BED, but • HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID Chap. 12 -- Privileges

  29. 2. THE “PRIVILEGE NOT TO BE CALLED” BY THE PROSECUTION[TEX. RULE 504] • BELONGS TO THE WITNESS- SPOUSE, NOT THE ACCUSED SPOUSE; IT IS HER CHOICE • ENDS WITH DIVORCE • DOES NOT APPLY WHERE WITNESS-SPOUSE IS THE ALLEGED VICTIM Chap. 12 -- Privileges

  30. 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 Chap. 12 -- Privileges

  31. MANY OTHER STATES, COMMON LAW(AND MANY MOVIES) • OPPOSITE OF THE TEXAS RULE • THERE, THE PRIVILEGE TO PREVENT THE WIFE FROM TESTIFYING BELONGS TO THE HUSBAND Chap. 12 -- Privileges

  32. 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 WRITES A DOCUMENT ON HIS OWN INITIATIVE, THIS PRIVILEGE DOES NOT APPLY; • ABSENT SOME OTHER PRIVILEGE, IT CAN BE SUBPOENAED AND USED BY THE PROSECUTION 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 • BUT SOMETIMES, PRODUCING THEM IN RESPONSE TO SUBPOENA COULD HAVE EFFECT OF MAKING A FORCED STATEMENT -- >> Chap. 12 -- Privileges

  34. EXAMPLE • SUBPOENA REQUESTING “ALL BANK DEPOSIT SLIPS THAT REFLECT DEPOSITS OF MONEY MADE FROM NARCOTIC SALES” • THIS SHOULD BE QUASHED, SINCE THE COMMAND IS PHRASED SUCH THAT COMPLIANCE WOULD AMOUNT TO A COMPELLED STATEMENT Chap. 12 -- Privileges

  35. 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 Chap. 12 -- Privileges

  36. CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5THTex. R. 513(c) • CIVIL PLAINTIFF INVOKING: • IS APT TO BE NON-SUITED IN TEXAS • CIVIL DEFENDANT INVOKING: • WILL HAVE HEAVY NEGATIVE JUDICIAL COMMENT FOR INVOKING 5TH AMENDMENT IN TEXAS • ALL OTHER PRIVILEGES ARE UNMENTIONABLE Chap. 12 -- Privileges

  37. CLERGYMAN-PENITENT[TEXAS RULE 505] • WORKS SIMILARLY TO LAWYER-CLIENT PRIVILEGE • APPLIES IN BOTH CIVIL AND CRIMINAL CASES • MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE “RELIGIONS”? Chap. 12 -- Privileges

  38. TRADE SECRETTEXAS 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 Chap. 12 -- Privileges

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

  40. PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] • 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 • MAY APPLY IN IMPEACHMENT SITUATIONS Chap. 12 -- Privileges

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

  42. 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, BUT NOT ALL OF IT • CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED Chap. 12 -- Privileges

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

  44. 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 Chap. 12 -- Privileges

  45. UNSETTLED WHETHER WORK PRODUCT HAS PROTECTION IN CRIMINAL CASES • 3 COURTS OF APPEALS HAVE SAID YES. SEE, e.g., WRIGHT v. STATE, 374 S.W. 3d 564 (Tex. App. Houston [14th] 2012) • IF NO PROTECTION, PROCEDURE WOULD LIKELY BE: GRAND JURY SUBPOENA Chap. 12 -- Privileges

  46. PROBLEMS/CASES • Trammel • 12G • Montgomery • 12H • Griffin • 12I [cont’d >>>] Chap. 12 -- Privileges

  47. PROBLEMS/CASES (cont’d) • 12J • Doe Chap. 12 -- Privileges

  48. 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 >>> Chap. 12 -- Privileges

  49. JOURNALIST’S PRIVILEGE IN CIVIL CASESTex. 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 • ALSO COVERS THEIR EMPLOYER COMPANIES • ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS • BUT NOT OTHER AMATEUR BLOGGERS Chap. 12 -- Privileges

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

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