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37 Cards in this Set
- Front
- Back
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Waiver applies to an UNDISCLOSED COMMUNICATION if 3 factors are met. What are these factors? Does this apply to fed or state proceeding? |
Waiver applies to an undisclosed communication IF the waiver was (1) intentional, (2) the disclosed and undisclosed information concern the same matter, and (3) they ought in fairness to be considered together Fed proceeding. |
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FRE 502: In a fed proceeding, a disclosure is not considered a waiver of AC privilege IF (3 factors are met): |
(1) if the disclosure is inadvertant (2) the holder of the info took reasonable steps to prevent the disclosure, and (3) the holder promptly took reasonable steps to rectify the error |
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When it comes do disclosure as a waiver of AC privilege, states take 3 approaches. What are they? (Just List them) What approach does FRE 502 fall into? |
The Lenient Approach, Strict test, Middle (balancing) test FRE 502 most closely aligns to the middle test |
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What is the strict approach with regard to disclosure as a waiver of AC privilege? |
Any document produced, either intentionally or otherwise, loses its privilege status w/ POSSIBLE EXCEPTION of situations where all precautions are taken. |
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What is the lenient approach with regard to disclosure as a waiver of AC privilege? |
Must have INTENTIONAL and KNOWING relinquishment of waiver |
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What is the common law middle-test with regard to the scope of disclosure as a waiver of AC privilege? (5 factors) Does this apply to undisclosed documents? |
(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error At the court's discretion, the privilege may also be determined to have been waived for related, but-as-yet undisclosed, documents |
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True or False: Under the middle-approach of waiving AC privilege, If a court determines that a disclosure = waiver of AC privilege, the court has discretion to waive the privilege for other, undisclosed documents |
True. |
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When it comes to waiver of privilege, who has the burden? |
Most cases requirethe party invoking the privilege have the burden of proving that it hasn’t beenwaived |
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Party A argues that a communication is privileged. Party B argues that the communication falls into the crime-fraud exception, and that the proof is in the communication itself. Describe the court's process. |
(1) Party seeking to invoke crime-fraud exception must show factual basis to support a good faith belief by a reasonable person that in-camera review MAY establish that crime-fraud applies (2) Party claiming privilege has burden to persuade court that the exception applies (3) Court makes a determination based on the surrounding facts and circumstances |
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To determine whether an in-camera view of a communication would reveal existence of the crime-fraud exception, the court will look to surrounding facts and circumstances including: |
(1) the volume of the materials to be reviewed, (2) therelative importance of the privileged information, and (3) the likelihood thatin camera review will establish the crime-fraud exception |
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Does the AC privilege apply even after the client has died? |
Yes. UNLESS the information is sought to be disclosed in litigation between T's heirs. |
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Does rule 502 (waiver of AC by disclosure) apply to communications made only in a federal or state proceeding? |
No. Generally, it is interpreted to include disclosures made prior to a proceeding as well. |
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Name the 2 types of marital privileges? |
Marital Communications Privilege Adverse Spousal Testimony Privilege |
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What are the policy rationales for the 2 types of marital privileges? |
Marital Communications Privilege: - Encourages spouses to speak frankly Adverse Spousal Testimony Privilege: - Don't harm existing marriages |
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What Evidence Rule specifically provides for marital privileges? |
AHA trick question. No evidence rule - it is common law (via 501) |
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What types of evidence qualifies for the marital privileges? |
Marital Communications Privilege: Only confidential communications Adverse Spousal Testimony Privilege: All communications, conduct, etc. |
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What types of cases do the marital privileges apply to? |
Marital Communications Privilege: All types of cases Adverse Spousal Testimony Privilege: Criminal + "tethered" civil cases |
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Who holds the marital privileges? |
Marital Communications Privilege: Both Spouses Adverse Spousal Testimony Privilege: Witness-Spouse |
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Do the marriage privileges survive death or divorce? |
Marital Communications Privilege: YES Adverse Spousal Testimony Privilege: NO |
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Do the marriage privileges cover communications made before marriage? |
Marital Communications Privilege: NO Adverse Spousal Testimony Privilege: YES (but no sham marriages) |
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The adverse spousal testimony privilege applies to all communications and observations ___________________. Privilege can be invoked ONLY _______________________. |
prior to the date of separation between the date of marriage and the date of separation |
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Marital communications privilege applies to all communications ___________________. Privilege can be invoked _______________________. |
Between the date of marriage and date of separation at any time after date of marriage, even after separation or divorce |
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Which marital privilege does NOT apply to communications made while a couple is permanently separated?
What are the factors to determine whether a couple is "permanently separated"? |
Both.
(a) Was the couple cohabiting? (b) If not cohabiting, how long had they beenliving apart? (c) had either spouse filed for divorce? (d) Other factors such as the intent or lack of intent toreconcile (e) MAY take into consideration testimoniesof the couple BUT where the objective factors outweigh, privilege does notapply
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TRUE OR FALSE: Adverse spousal testimony privilege applies to adverse testimony given by a spouse in a civil proceeding. |
False. ASP only applies to civil cases tethered to a criminal proceeding. |
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TRUE OR FALSE: Marital Communications privilege applies in civil proceedings. |
True. Applies to both civil and criminal. |
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Does the adverse spousal testimony apply when the witness-spouse wants to voluntarily testify? |
No. They can voluntarily testify. |
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What FRE rule specifically addresses the psychotherapist-patient privilege? |
None. But it is rooted in 501 (common law) |
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True or False: Nearly all the states recognize some version of the psychotherapist-patient privilege |
TRU TRU |
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What are the considerations in applying FRE 501? (there are 6) |
(1) Presumption of no privilege (2) Benefit-Cost analysis (3) Experience in the states (4) Proposed (but rejected) rule (5) Has congress considered and rejected the very privilege at issue? (6) Wigmore Factors |
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What are the Wigmore Factors and what do they apply to? (There are 4) |
Factors: (1) Did the communication originate in confidence? (2) Is the relationship one which ought to be fostered? (3) Is the element of confidentiality essential to the maintenance of the relationship? (4) Is injury to relationship by disclosing greater than benefit gained for correct disposal of litigation? Wigmore factors = consideration when applying FRE 501 |
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FRE 502: When the disclosure is made in a state proceeding and is NOT the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a FED proceeding if |
the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred |
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Fed or State privilege law? Civil or criminal action based on fed law or fed common law |
Fed privilege law |
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Fed or State privilege law? Federal incorporation of state law |
Fed privilege law |
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Fed or State privilege law? State law claim in a diversity action |
State privilege law applies |
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Fed or State privilege law? State law claim w/ a federal defense |
Fed privilege law applies to evidence relevant to the DEFENSE |
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Fed or State privilege law? Criminal proceeding removed to federal court |
Fed privilege law applies |
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Fed or State privilege law? Federal and state law combined |
*shrug* who knows |
