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More on Privileges and their Exceptions

Remember that logically and legally relevant evidence is generally admissible at trial. Moreover, generally this evidence must be turned over if sought by opposing counsel. In other words, one party can generally compel the other party to disclose logically and legally relevant evidence. That being said there are times when a party can assert a privilege in an effort to prevent disclosure of particular information. These privileges were created by the legislature for various policy reasons. The reasoning being that promoting certain policies is seen as more important on balance than the importance of disclosing what would otherwise be logically and legally relevant evidence to the trier of fact. In order for a privilege to effectuate there must typically be a particular type of relationship between two or more people wherein communication transpired. There must also typically be confidentially in that communication with an intent that such communication remain confidential.

That being said, just as the privilege is in fact an exception to the general rule that logically and legally relevant evidence can be compelled there are also exceptions to the various privileges which if established correctly can destroy what would otherwise be a valid privileged. For example, generally speaking, communication between attorney and client is privileged communication. Thus if a client comes to me, as their attorney, and divulges information to me, not only can I not be compelled by opposing counsel to turn over this communication but additionally I am prohibited from doing so even if I desire to. The client is the holder of the privilege and thus third parties who are considered part of that confidential relationship are prohibited from breaching that confidentiality. However, if my client decides to seek legal advice from me for the purposes of committing a crime or fraud then what would otherwise be privileged communication loses its privileged protections.

In order to overcome the attorney client privilege on cross examination you simply need to make a sufficient showing to the court that the client sought advice from his counsel for purposes of committing a fraud or crime. So in practice, when you are conducting your line of questioning of the witness and you receive an objection from opposing counsel based on attorney-client privilege you need to request to approach the bench. Then at the bench, out of the juror's purview, make an offer of proof to the court as to what you intend to show through that witness. That offer of proof will of course be that the witness will testify to communication between client and attorney wherein client sought advice from attorney for purposes of committing a fraud or crime. If the court thinks that you have made a sufficient offer of proof then the court should let you go on with your line of questioning to see if you can procure this testimony from the witness. Of course, you are going to have a hard time procuring this testimony unless you have some type of impeachment tool handy such as a deposition transcript.

Another exception to the attorney-client privilege can occur when there are multiple parties who consult with the same attorney. Generally speaking, the presence of more than one client in and of itself does not destroy the attorney-client privilege. The parties can assert the privilege against a third party such as their lawyer. That being said, if the two clients then later find themselves at odds with each other and in a legal dispute then that communication loses its privileged nature. If you are the attorney conducting cross examination in this context and you wish to illicit testimony of the witnesses who consulted with their attorney then you will again go down your line of questioning until you receive the inevitable privilege objection from opposing counsel. At this point, again, request permission to approach the bench with counsel. Then make an offer of proof to the judge as to the facts you wish to elicit. Namely, that the two individuals consulted with the same attorney regarding a common legal issue. The judge should then likely let you go on with your line of inquiry, overruling opposing counsel's objection. You may however need to lay a foundation with the witness for the fact that the two individuals consulted with the same attorney regarding the same issue.

Another one of the more commonly evoked privileges is that of the physician-patient privilege. Generally, the patient can speak to his medical providers openly without having to worry about the same medical provider being compelled to disclose that communication with adverse counsel at a later date. That being said, the privilege has its exceptions. The exception applies when the litigant puts his physical well-being in issue by suing for damages based on physical or mental injury. As soon as the litigant places his or her health in issue the privilege evaporates. This is called the patient-litigant doctrine. The reason for the doctrine's existence is that it would be unfair for the litigant to be able to conceal this very relevant information while at the same time making a claim for damages based on the same condition.

As counsel seeking to illicit this information from the witness you conduct your line of inquiry until the anticipated objection is placed on the record by opposing counsel. Then again, you request to approach the bench. Then you advise the court that the plaintiff's witness put his health in issue by filing a complaint and asking for damages based on the witness's injuries. Then advise the judge that those statements made by the client to his or her doctor are logically relevant to the extent of damages as found in the plaintiff's complaint. This patient-litigant doctrine creates an exception to the physician-patient privilege. That being said, remember that the attorney client privilege also provides for privilege when the attorney uses an expert such as a doctor to assist in the litigation. Some jurisdictions apply the exception to both the physician-patient privilege and the attorney-client privilege while others only apply the exception to the physician-patient privilege thereby leaving the attorney-client privilege intact.

Beyond the attorney-client protections which protect communications between client and attorney there are broader exceptions which protect more than simply the line of communication between client and attorney. The work product protection allows an attorney to create work product for the purposes of assisting in litigation without having to fear being later compelled to disclose that same work product. Thus, if the attorney creates notes, reports, diagrams, models, etc… in an effort to prepare for litigation then that same attorney can rest assured that he or she will not have to turn such over to opposing counsel. In addition to work-product prepared by the attorney the protections go further in protecting work product prepared by individuals retained by that attorney. The typical context for this event is the expert who prepares a report for the attorney to use to assist the attorney in preparing for trial. Since the attorney retained the expert for purposes of assisting in the litigation, the reports that are prepared by this expert fall within the work product protections as well. More than just expert's work product is protected. If an attorney employs staff to work the case with the attorney then that attorney can expect the material prepared by that same staff to be protected just as if the attorney prepared that material him or herself.

The work product protection is mostly a product of the Supreme Court. The Supreme Court essentially found that these protections are necessary so as to allow counsel to properly and thoroughly represent his client's interests. That being said, and often forgotten, there are times when this work product protection will fail. Opposing counsel may be able to penetrate the work product protections. In order for counsel to do so then counsel must make a showing that they have substantial need for those same materials and that they are unable to procure the substantial equivalent of those materials otherwise. This is not an easy showing to make by the party seeking to penetrate the work product protections. One example where a party could make this showing is when and if the other party has the only qualified expert retained and that expert has prepared a highly relevant report. If another expert could not be retained for purposes of giving the other party a similar report then this showing of substantial need could probably be made.

Issues and disputes regarding work product typically occur prior to trial rather than in trial itself. This is because work product is typically sought in discovery requests made prior to trial. Once motions are filed the attorney seeking to protect such work product can prepare an affidavit for presentment to the court. The affidavit should lay all the proper foundation for the protection within that affidavit. This showing would include facts demonstrating that the information prepared by the attorney or his or her agents was derivative in nature. This means that the material was prepared by the attorney rather than simply being direct evidence brought to the attorney by the client. The affidavit would also need to demonstrate that such work product was prepared in anticipation of trial or litigation. The attorney on the other side of the case, the attorney seeking such information, could likewise prepare an affidavit for the court. This affidavit would need to include information detailing why the otherwise protected information is highly relevant to the case and more importantly why the party seeking this material is in substantial need of this same work product and can't acquire similar evidence elsewhere.

There is also another work product doctrine which provides even greater protections. This is called the absolute work product doctrine. The absolute work product doctrine has no exceptions. In other words, the other party cannot make a showing of substantial relevance and substantial need as he or she can with conditional work product for purposes of defeating the afforded protections. With absolute work product there is no exception to be had. However, only certain types of work product fall within the parameters of the absolute work product protections. The type of work product that falls within this greater class of protection is that of work product prepared by the attorney him or herself. This would include notes, summaries, memorandum prepared by counsel in preparation of litigation. To assert this protection, counsel again would prepare an affidavit demonstrating these facts to the court.

The above article reflects some evidentiary rules as promulgated by the Federal Rules of Evidence. Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations. Evidentiary Foundations, is a superb publication providing valuable insight into this subject matter and it is the source of much of my own information on the subject, as outlined above. I, Eric Roy, am by no means an expert in this area of law. I write these blogs/articles solely for my own personal learning benefit. Rather than rely on my statements I would suggest you go directly to your local evidentiary rules.

Categories: Evidence