Privileges are determined by rules and case law outside the discovery rules. If a party withholds otherwise discoverable information because of claimed privilege, the claim must be made expressly and must describe the information or things withheld in a manner that will enable other parties to assess the applicability of the privilege.
- Covers relevant (i.e., otherwise discoverable) information that is actually germane to a case.
- Involves certain relationships that are considered worthy of special protection
- All jurisdictions respect attorney-client privilege, partly because it's part of the Constitution (right to counsel), and is based on an old common-law privilege.
- Most jurisdictions protect some form of spousal privilege, but with variations.
- Others: MD-patient, priest-penitent, accountant-client (but varies from place to place).
- Can be waived, then no longer protects.
- Formally by not invoking
- Or if private communication has already been shared with 3rd parties
- Such as filing suit about medical issues, which mostly removes MD-patient confidentiality
- Attorney-client privilege
- Protects having to disclose particular communications and things you know only by virtue of those communications...
- ...but does not insulate from discovery the subject matter of those communications to the extent you know about them independently of the communications themselves.
- Upjohn Co. v. United States, 449 U.S. 383 (1981)
- Extended corporate attorney-client privilege beyond just the top officials of the corporation.
