Evidence - Privileges
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Choice of Law
For cases arising under federal substantive law (federal question), use federal privilege law. Diversity cases use state privilege law.
- Attorney-client privilege applies to a confidential (no TPs) communication (not the underlying information) between a barred attorney (or who client reasonably believes is a member of the bar) and client (including prospective client) or their representatives, made during a professional legal consultation (not for social, economic advice).
- Exceptions to attorney-client privilege include client enlists attorney’s help in committing a future crime or fraud, client puts the attorney’s advice at issue (advice of
- counsel defense), and breach of duty/malpractice.
- Only the client (or his estate at death) can waive the privilege.
- Voluntary waiver may waive the entire subject matter if the partial disclosure was voluntary, the disclosed and undisclosed communications concern the same subject matter, and fairness requires that we consider them together.
- Inadvertent disclosure doesn’t amount to waiver if the privilege holder took reasonable steps to prevent the disclosure and correct the error.
- Physician-patient privilege applies to a confidential communication or information physician/psychotherapist acquires from patient for the purpose of treatment or diagnosis.
- Patient waives the privilege by putting his physical or mental condition at issue (insanity).
- Federal law recognizes only the psychotherapist privilege and not doctor-patient.
- Va recognizes both, but only in civil cases.
- Husband-wife privilege:
- In a criminal case, the spouse cannot be compelled to testify about anything, whether it’s private or public, but she can choose to waive it.
- The confidential communication privilege applies in any case. Both spouses hold it, either can invoke, so both must agree to waive it.
- The confidential communication privilege doesn’t apply to communications of jointly-perpetrated future crimes or fraud, in cases of child abuse, and in litigation between the spouses themselves.
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