1. CHAP. 12 : PRIVILEGES
P. JANICKE
FALL 2012

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
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3. PURPOSE TO FURTHER SOME SOCIETAL GOAL
REFLECTS HUMANKIND’S EFFORT TO CIVILIZE ITSELF
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4. FEDERAL RULES ON PRIVILEGES
PRACTICALLY NONEXISTENT
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5. TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE
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6. 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
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7. 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
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8. 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
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9. WHERE LAWYER DECLINES THE REPRESENTATION
NO EFFECT ON THE PRIVILEGE
NO RELATIONSHIP NEEDED
SEE DEFINITION
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10. EAVESDROPPER NO EFFECT EAVESDROPPERS CAN BE ENJOINED
SEE DEFINITION : APPARENT CONFIDENTIALITY IS ENOUGH
SOME OLDER CASES CONTRA
EAVESDROPPERS CAN BE ENJOINED
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11. 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!”
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12. MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS
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13. 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
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14. 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
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15. 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
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16. LAWYER MUST HONOR THE CLIENT’S WAIVER INSTRUCTION
EVEN IF EMBARRASSING TO THE LAWYER
A RESULT OF CLIENT “OWNING” THE PRIVILEGE
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17. 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
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18. 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
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19. PROBLEMS/CASES 12A 12B 12C Meredith 12D Suburban Osterhoudt (cont’d)
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20. PROBLEMS/CASES
Zolin
12E
Exercise #9
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21. MORE TEXAS RULES OF EVIDENCE

22. 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
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23. 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
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24. 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
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25. 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 VICTIM
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26. MANY OTHER STATES (AND MANY MOVIES)
PRIVILEGE BELONGS TO THE DEFENDANT SPOUSE
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27. 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
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28. 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 -- >>
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29. 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
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30. 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
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31. 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 5TH IN TEXAS
ALL OTHER PRIVILEGES ARE UNMENTIONABLE
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32. CLERGYMAN-PENITENT [TEXAS RULE 505]
WORKS SIMILARLY TO LAWYER-CLIENT PRIVILEGE
CIVIL AND CRIMINAL CASES
MAIN ISSUE TODAY IS: WHAT ORGANIZATIONS ARE RELIGIONS?
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33. TRADE SECRET TEXAS RULE 507
A QUASI-PRIVILEGE
COURT CAN OVERRIDE IT IF MAINTAINING THE PRIVILEGE WOULD “WORK INJUSTICE”
PRETTY EASY TO BREAK TODAY, WITH PROTECTIVE ORDER
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34. PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509]
NO SUCH PRIVILEGE IN CRIMINAL CASES IN TEXAS
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35. 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 ??]
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36. 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
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37. 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
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38. BUT, MENTAL IMPRESSIONS OF COUNSEL ARE MASKED OUT
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39. 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”
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40. WORK PRODUCT HAS NO APPLICABILITY IN CRIMINAL CASES
E.G., GRAND JURY SUBPOENA OVERRIDES
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41. PROBLEMS/CASES 12H Griffin 12I Doe Exercise #10 2011
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42. 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:
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43. JOURNALIST’S PRIVILEGE IN CIVIL CASES Tex. Civ. Prac. & Rems. Code §22
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
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44. PUBLICATION OF THE INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER
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
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45. 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)
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46. JOURNALIST’S PRIVILEGE IN TEXAS CRIMINAL CASES TEX. CODE. CRIM. PROC
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
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47. 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
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48. 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
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49. 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
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