CHAP. 12 : PRIVILEGES P. JANICKE FALL 2014

2014Chap Privileges2 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

2014Chap Privileges3 PURPOSE TO FURTHER SOME SOCIETAL GOAL REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF

FEDERAL RULES ON PRIVILEGES NONE WERE ACTUALLY ENACTED THE U.S. JUDICIAL CONFERENCE GAVE US THE 500-SERIES OF RULES, NOW KNOWN AS “STANDARDS” –NOT OFFICIALLY “RULES” –BUT THEY CARRY A LOT OF WEIGHT 2014Chap Privileges4

FEDERAL STANDARDS ON PRIVILEGES ARE INCLUDED IN THE MATERIALS POSTED ON MY HOME PAGE 2014Chap Privileges5

TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE RULE Chap Privileges6

2014Chap Privileges7 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

2014Chap Privileges8 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

2014Chap Privileges9 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

2014Chap Privileges10 WHEN LAWYER THEN DECLINES THE REPRESENTATION NO EFFECT ON THE PRIVILEGE; IT STANDS, PER THE DEFINITION NO RELATIONSHIP WAS NEEDED –SEE DEFINITION

2014Chap Privileges11 EAVESDROPPER NO EFFECT –APPARENT CONFIDENTIALITY IS ENOUGH –SOME OLDER CASES CONTRA EAVESDROPPERS CAN BE ENJOINED

2014Chap Privileges12 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 IS CALLED DERIVATIVELY PRIVILEGED –E.G. : “HMMM! THEN I THINK YOU’RE GUILTY OF MURDER!”

2014Chap Privileges13 MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS

2014Chap Privileges14 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, IF ANY, SHOULD SEE IT

2014Chap Privileges15 WAIVER ONLY BY THE CLIENT OR HIS REPRESENTATIVE (WHO IS OFTEN THE LAWYER) WAIVES EXPRESSLY –PERSONALLY AUTHORIZES DISCLOSURE OF THE COMMUNICATION –AUTHORIZES AGENT TO DISCLOSE THE COMMUNICATION WAIVES BY IMPLICATION –LAWYER IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE

WAIVES BY CONDUCT –CLIENT REVEALS THE COMMUNICATION TO OTHERS “OUTSIDE THE FAMILY” –CLIENT HANDS OVER DOCUMENTS CONTAINING THE COMMUNICATION 2014Chap Privileges16

2014Chap Privileges17 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

2014Chap Privileges18 LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION –EVEN IF EMBARRASSING TO THE LAWYER –A RESULT OF CLIENT “OWNING” THE PRIVILEGE

2014Chap Privileges19 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

2014Chap Privileges20 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

NEW FEDERAL RULE 502 LIMITS SPREAD OF WAIVER –ONLY TO OTHER COMMUNICATIONS THAT SHOULD IN FAIRNESS BE CONSIDERED TOGETHER –NO LAW FIRM SHOPPING A COURT ORDER (EVEN BY AGREEMENT) CONTROLS SCOPE OF SPREAD EVEN MORE 2014Chap Privileges21

PROBLEMS/CASES 12A 12B 12C Meredith 12D Suburban Upjohn Osterhoudt (cont’d) 2014Chap Privileges22

PROBLEMS/CASES Zolin 12E Exercise #9 2014Chap Privileges23

MORE TEXAS RULES OF EVIDENCE

2014Chap Privileges25 TWO MARITAL PRIVILEGES [TEXAS RULE 504] 1.“MARITAL COMMUNICATIONS” –MADE DURING MARRIAGE UNDER APPARENT PRIVACY CONDITIONS –PRIVILEGE BELONGS TO THE SPEAKING SPOUSE –DOESN’T EXTEND TO CONTEMPORANEOUS ACTIONS –PRIVILEGE SURVIVES DIVORCE

2014Chap Privileges26 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

2014Chap Privileges27 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, but –HUSBAND CAN PREVENT EX-WIFE FROM TESTIFYING TO WHAT HE SAID

2014Chap Privileges28 “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 WITNESS- SPOUSE IS THE ALLEGED VICTIM

2014Chap Privileges29 MANY OTHER STATES, COMMON LAW (AND MANY MOVIES) THIS PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE

2014Chap Privileges30 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

2014Chap Privileges31 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 -- >>

2014Chap Privileges32 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

2014Chap Privileges33 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

2014Chap Privileges34 CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5TH 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

2014Chap Privileges35 CLERGYMAN-PENITENT [TEXAS RULE 505] WORKS SIMILARLY TO LAWYER- CLIENT PRIVILEGE CIVIL AND CRIMINAL CASES MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE “RELIGIONS”?

2014Chap Privileges36 TRADE SECRET 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

2014Chap Privileges37 PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509] NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS

2014Chap Privileges38 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 ??]

2014Chap Privileges39 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

2014Chap Privileges40 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

2014Chap Privileges41 BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT >>>

2014Chap Privileges42 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”

2014Chap Privileges43 UNSETTLED WHETHER WORK PRODUCT HAS PROTECTION IN CRIMINAL CASES –14 TH COURT OF APPEALS SAYS YES WRIGHT v. STATE, 374 S.W. 3d 564 (Tex. App. Houston [14 th ] 2012) ANY FORM OF DISCOVERY IS UNUSUAL IN CRIMINAL CASES

PROBLEMS/CASES 12H Griffin 12I Doe 2014Chap Privileges44

2014Chap Privileges45 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:

2014Chap Privileges46 JOURNALIST’S PRIVILEGE IN CIVIL CASES Tex. Civ. Prac. & Rems. Code § 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 –BUT NOT OTHER BLOGGERS

2014Chap Privileges47 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

2014Chap Privileges48 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

2014Chap Privileges49 JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC. ART 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

2014Chap Privileges50 –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

2014Chap Privileges51 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

2014Chap Privileges52 ABROGATION OF PRIVILEGES IN CHILD-ABUSE CASES TEX. FAM. CODE § ALL PRIVILEGES VANISH IN PROCEEDINGS “REGARDING THE ABUSE OR NEGLECT OF A CHILD” EXCEPT: ATTORNEY-CLIENT PRIVILEGE MAIN PURPOSE OF ABROGATION: TO BLOCK THE MARITAL COMMUNICATION PRIVILEGE [Cf. R. 504]