Also known as: light of reason & experience · reason and experience
Written by attorneys · grounded in primary & secondary sources — see below
A standard of judicial interpretation under which federal courts develop common-law evidentiary privileges by drawing on historical precedent and contemporary policy considerations. The standard supplies the default rule for privilege claims in federal proceedings unless the Constitution, a federal statute, or Supreme Court rules dictate otherwise. In civil cases where state law supplies the rule of decision, state privilege law controls instead.
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Professor Laura Kim sued Drake University in federal court under a federal anti-discrimination statute, seeking her confidential tenure review files. The university invoked a state academic peer-review statute to withhold the materials. The court applied federal common-law privilege principles developed under the light of reason and experience and ordered production because no federal privilege shielded the files.
Federal prosecutors sought internal corporate records protected by a state self-critical analysis statute. The defendant corporation resisted production. The court applied federal common-law privilege principles developed under the light of reason and experience and ordered production because no federal privilege shielded the files.
Upjohn's general counsel directed company employees to complete questionnaires about questionable payments. The IRS later sought the completed questionnaires. The court held that the attorney-client privilege protected the documents because federal common law, interpreted in light of reason and experience, extends the privilege to communications that facilitate legal advice within a corporation.
A defendant charged with narcotics offenses sought the name of a confidential informant who had supplied information leading to his arrest. The government refused disclosure. The court balanced the defendant's need for the information against the public interest in protecting informants and, applying common-law principles in light of reason and experience, upheld the government's refusal.
The government subpoenaed a wife to testify against her husband in a federal criminal trial. The husband invoked the adverse spousal testimony privilege. The court examined the privilege under common-law principles interpreted in light of reason and experience and held that the witness-spouse alone holds the privilege and may choose to testify.
A police officer sought counseling after a shooting and later faced a civil suit arising from the incident. The plaintiff subpoenaed the therapist's notes. The court recognized a psychotherapist-patient privilege under federal common law developed in light of reason and experience and quashed the subpoena because the communications were made in the course of diagnosis or treatment.
Federal common law developed in light of reason and experience governs privilege claims in federal-question cases. State privilege law applies only in civil cases where state law supplies the rule of decision for the claim or defense to which the evidence relates.
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…. . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). Its purpose is…
…devising such evidentiary rules, we are to be governed by "principles of the common law as they may be interpreted . . . in the light of reason and experience
…Federal Rule of Evidence 501, which simply says that all privileges are “governed by the principles of the common law ... in the light of reason and experience
Courts weigh the public policy benefits of confidentiality against the need for evidence in litigation. They examine whether the proposed privilege is rooted in common-law tradition, whether it serves important societal interests, and whether the costs of nondisclosure outweigh its benefits.
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No. When federal law supplies the rule of decision for the central claims, federal common-law privilege principles control even if supplemental state claims are also present. State privilege law applies only to claims or defenses governed exclusively by state substantive law.
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A state statute may serve as persuasive evidence of policy considerations but does not bind the federal court. The court evaluates whether to recognize the privilege under federal common law developed in light of reason and experience.
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