1. CHAP. 12 : PRIVILEGES
Prof. JANICKE
FALL 2019

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 THE EV. IS RELEVANT
EVEN THOUGH THE EV. IS CRUCIAL
NO REASON IS NEEDED
2019
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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
2019
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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
2019
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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]
2019
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6. TURN TO TEXAS RULES ON PRIVILEGES
2019
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7. TEXAS RULE ON ATTORNEY-CLIENT PRIVILEGE
2019
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8. 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
2019
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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
2019
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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
2019
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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
2019
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12. UNKNOWN EAVESDROPPER NO EFFECT
APPARENT CONFIDENTIALITY IS ENOUGH
SOME OLDER CASES CONTRA
EAVESDROPPERS CAN BE ENJOINED TO MAINTAIN SILENCE
2019
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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!”
2019
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14. MOST MODERN DECISIONS SHORTEN THE ANALYSIS AND SAY THE PRIVILEGE COVERS BOTH WAYS
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15. THE CLIENT “OWNS” THE PRIVILEGE, MEANING:
ONLY SHE CAN DECIDE WHETHER OR NOT TO BLOCK DISCLOSURE IN COURT, i.e., TO WAIVE THE PRIVILEGE
ONLY SHE CAN DECIDE WHICH OF LAWYER’S HELPERS, OR HER OWN HELPERS, SHOULD LEARN THE COMMUNICATION
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16. 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 AUTHORIZING AN AGENT TO DECIDE ON DISCLOSURE OF THE COMMUNICATION
CLIENT’S AUTHORIZATION TO WAIVE CAN BE IMPLICIT:
LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE
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17. CLIENT DECIDES 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
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18. WAIVER BY CONDUCT: HALF-OPEN DOOR RULE
REVEALING PARTS IN TESTIMONY
REVEALING ONE LAWYER COMMUNICATION BUT ASSERTING PRIVILEGE ON OTHERS ON SAME TOPIC
WAIVER BY PRODUCING PRIVILEGED DOCUMENTS IN LITIGATION R. 502
CODIFIES THE HALF-OPEN RULE
OTHER COMMUNICATIONS THAT OUGHT “IN FAIRNESS” TO BE CONSIDERED WITH WAIVED ITEM
2019
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19. “INVOLUNTARY” WAIVER: 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 LAWYERS’ OPINIONS ON THE TOPIC ARE ALSO WAIVED
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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
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21. SOME RELIEF FROM THIS “SPREADING STAIN” OF WAIVER, IF REVELATION IS ACCIDENTAL:
A COURT’S NON-WAIVER ORDER IS BINDING FOR REVELATIONS IN THE CASE
PARTIES’ NON-WAIVER AGREEMENT IS BINDING, BUT ONLY FOR THIS CASE
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22. TEXAS RULE 503 WALK THROUGH ALL PHRASES OF THIS RULE -- 2019
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23. PROBLEMS/CASES 12A 12B 12C Meredith 12D Suburban Upjohn
Osterhoudt (cont’d)
2019
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24. PROBLEMS/CASES Zolin 12E 12F 12G Trammel 12H Montgomery 2019
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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
2019
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27. EXCEPTIONS ACTIONS BETWEEN THE SPOUSES
CRIMINAL CASE WHERE ALLEGED VICTIM WAS (i) THE LISTENING SPOUSE, OR (ii) A MINOR CHILD
SPEAKING SPOUSE HAS NO PRIVILEGE IN SUCH CASES
SEVERAL OTHER EXCEPTIONS SEE TEXAS R. EV. 504
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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
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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 [FED. AND TEX. RULES ARE THE SAME]
ENDS WITH DIVORCE
DOES NOT APPLY WHERE WITNESS-SPOUSE IS THE ALLEGED VICTIM
2019
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30. HER PRIVILEGE IS TO REFUSE TO BE A WITNESS FOR THE PROSECUTION
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
2019
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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
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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
2019
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33. NOTE: COMPELLED CONDUCT IS NOT PROTECTED BODILY FLUIDS
HANWRITING SAMPLE
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34. 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 -- >>
2019
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35. 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
2019
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36. 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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37. CIVIL CASES: JUDICIAL COMMENT ON INVOKING THE 5TH Tex. 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
2019
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38. 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”?
2019
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39. 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
2019
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40. PHYSICIAN-PATIENT PRIVILEGE [TEXAS RULE 509]
NO PRIVILEGE IN CRIMINAL CASES IN TEXAS
2019
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41. 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
2019
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42. 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
2019
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43. 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
2019
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44. MENTAL IMPRESSIONS OF COUNSEL ARE USUALLY MASKED OUT [SEE NEXT SLIDE]
>>>
2019
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45. 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
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46. 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
2019
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47. PROBLEMS/CASES Trammel 12G Montgomery 12H Griffin
12I [cont’d >>>]
2019
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48. PROBLEMS/CASES (cont’d)
12J
Doe
2019
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49. 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 >>>
2019
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50. 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
ALSO COVERS THEIR EMPLOYER COMPANIES
ALSO COVERS UNIVERSITY SCHOLARS AND RESEARCHERS
BUT NOT OTHER AMATEUR BLOGGERS
2019
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51. 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
2019
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52. LIMITS: COURT CAN ORDER DISCLOSURE BY JOURNALIST IF:
NO OTHER WAY TO OBTAIN THE EVIDENCE;
SUBPOENA IS NARROWLY DRAFTED; and
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
USUALLY IS OBJECTIONABLE ON HEARSAY GROUND
2019
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53. 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; or
SOURCE ADMITTED COMMISSION OF A FELONY, AND NO OTHER WAY TO PROVE IT; or
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54. INFO WAS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY; or
PROBABLE CAUSE EXISTS THAT SOURCE COMMITTED A FELONY, AND NO OTHER WAY TO PROVE IT; or
INFO WAS OBTAINED BY BREACH OF GRAND JUROR’S DUTY OF SECRECY; or
DISCLOSURE OF SOURCE IS NEEDED TO PROTECT LIFE OR PREVENT SERIOUS BODILY HARM
2019
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55. 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
2019
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56. ABROGATION OF NEARLY ALL PRIVILEGES IN CHILD-ABUSE CASES TEX. FAM
ABROGATION OF NEARLY ALL 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 BOTH SPOUSES’ MARITAL COMMUNICATION PRIVILEGES [Cf. R. 504]
2019
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