Also known as:evidentiary privileges · testimonial privilege
Written by attorneys · grounded in primary & secondary sources — see below
A rule of evidence that shields confidential communications made within certain relationships from compelled disclosure in judicial or administrative proceedings. The protection encourages open exchanges in relationships society deems worthy of fostering, such as those between spouses, attorneys and clients, and psychotherapists and patients. The holder of the privilege may assert it to block testimony or production of documents, and the burden typically rests on the party seeking disclosure to overcome the presumption of confidentiality.
Sources & Authorities· 5 primary sources
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Cases
Statutes
Federal Rules
Casebooks
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Course Outlines
Study Supplements
How it applies
Common Examples
6
Spousal Bedroom Conversations
Elliot Edmonds and his spouse Ewan Eckhart discussed details of an insurance fraud scheme each night while alone in their bedroom. The government subpoenaed Ewan to testify about those talks in a federal prosecution of Elliot. Ewan was willing to testify, but Elliot invoked the privilege to block disclosure of the private exchanges. The court quashed the subpoena as to the bedroom discussions because the communications were made with an expectation of confidentiality during the marriage.
Corporate Counsel Advice
Elena Estrada, in-house counsel for Elite Dynamics, advised the board on regulatory compliance during a closed meeting. A shareholder later sued and sought production of the meeting minutes. Elite Dynamics asserted the attorney-client privilege to withhold the documents. The court upheld the privilege because the communications were made for the purpose of obtaining legal advice within the corporate relationship.
Garner v. Wolfinbarger430 F.2d 1093 (5th Cir. 1970)
Presidential Communications
Ezra Eastman, a former White House aide, received a subpoena for notes of conversations with the President about official decisions. The President asserted executive privilege to prevent disclosure in a civil suit. The court recognized the privilege as rooted in separation of powers and required the plaintiff to show a compelling need before ordering production.
Richard Nixon v. A. Ernest Fitzgerald457 U.S. 731 (1982)
Act of Production
Evelyn Ellison received a grand jury subpoena for business records that would authenticate her involvement in a fraud scheme. She asserted the Fifth Amendment privilege against self-incrimination. The court held that the act of producing the documents was testimonial and therefore protected, even though the documents themselves were not privileged.
United States v. Hubbell530 U.S. 27, 35–36 (2000)
Independent Counsel Inquiry
Eduardo Enriquez, a former government official, was subpoenaed by an independent counsel investigating misconduct. He asserted a testimonial privilege to avoid answering certain questions. The court examined whether the independent counsel could contest the privilege assertion under the governing statute before deciding whether to compel testimony.
Alexia Morrison, Independent Counsel v. Theodore B. Olson487 U.S. 654 (1988)
Therapist Patient Notes
Echo Systems employee Ewan Eckhart sought counseling from a licensed therapist after a workplace incident. The therapist's notes were later subpoenaed in a civil suit against the company. The therapist asserted the psychotherapist-patient privilege. The court recognized the privilege as protecting confidential communications made in the course of diagnosis or treatment.
Jaffee v. Redmond51 F.3d 1346, 1355 (7th Cir. 1994)
Common questions
Frequently Asked
5
Who holds the marital communications privilege in federal court?+
Both spouses hold the marital communications privilege jointly. Either spouse may assert it to prevent disclosure of confidential communications made during the marriage, and the privilege survives the marriage in some contexts.
Supporting sources
How does the marital communications privilege differ from the adverse spousal testimonial privilege?+
The marital communications privilege protects the content of confidential exchanges between spouses and may be asserted by either spouse. The adverse spousal testimonial privilege concerns whether one spouse may be compelled to testify at all against the other and belongs solely to the witness spouse in federal criminal cases.
Does the evidentiary privilege protect information a lawyer learns from third parties?+
No. Information learned from third parties is protected only by the duty of confidentiality, not by the evidentiary privilege. The privilege requires that the communication come from the client or the client's agent.
Supporting sources
Can a court review privileged material in camera to decide a preliminary question such as expert qualification?+
No. Rule 104(a) permits a court to consider otherwise inadmissible evidence when deciding preliminary questions, but expressly excepts rules on privilege. A court may not examine material protected by an evidentiary privilege even for the limited purpose of assessing admissibility of other evidence.
Supporting sources
Does the attorney-client privilege apply to preexisting documents transferred to counsel solely to obtain legal advice?+
No. Preexisting documents that could have been obtained from the client by court process remain subject to production even after transfer to an attorney. The privilege does not attach merely because the documents are now in counsel's possession.
Supporting sources
, we have recognized that the Presidential
privilege
is "rooted in the separation of powers under the Constitution." United States v. Nixon , 418 U. S., at 708. It is settled law that the…
.[^maj-17] More relevant to this case is the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or…
Evidentiary Privileges
in the Federal Courts, 52 Calif.L.Rev. 640 (1964), 2B Barron & Holtzoff, Federal Practice & Procedure, § 967 at 243-44 (Wright ed. 1961), cf. 4 Moore, Federal Practice, ¶ 26.23[9] at…
EvidencePrivileges and other policy exclusions · Spousal immunity and marital communicationsUBEIntermediate