Privileges, Their Scope and How They Are Waived

A privilege is a rule that keeps evidence out because of the relationship in which it arose. Unlike the rest of the rules, it does not rest on unreliability. It accepts the loss of accurate evidence in exchange for protecting a relationship the law wants people to use freely. That trade explains why privileges are read narrowly and why waiver is treated seriously.

The source of the governing rule

Federal Rule of Evidence 501 declines to codify individual privileges. It provides that the common law, as interpreted by United States courts in the light of reason and experience, governs a claim of privilege, unless the Constitution, a federal statute, or a rule prescribed by the Supreme Court provides otherwise. Privileges therefore develop case by case rather than by enumeration.

The second sentence matters in civil litigation. In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. A federal case combining a federal claim with a state claim can therefore be governed by two bodies of privilege law at once, and courts resolve the resulting conflicts inconsistently. Where the same evidence bears on both, most courts apply federal law.

The elements of the central privilege

The attorney-client privilege protects a communication, made in confidence, between a client and a lawyer or the lawyer's agent, for the purpose of obtaining or providing legal advice. Every element is a limit. A communication made in the presence of an outsider is not confidential. A communication seeking business rather than legal advice is not protected, and courts examining mixed-purpose communications ask which purpose predominated.

The privilege belongs to the client and survives the relationship. It covers the communication, not the underlying facts, and not documents that were unprivileged before they were handed to counsel. In the organizational setting the privilege reaches communications with employees about matters within their duties, made so the organization could obtain legal advice.

The privileges courts have recognized alongside it

Federal courts recognize a psychotherapist-patient privilege covering confidential communications made for diagnosis or treatment, extending to licensed social workers. Two marital privileges operate differently: a testimonial privilege, held by the witness spouse, against being compelled to testify against a spouse in a criminal case, and a confidential communications privilege covering private statements made during a valid marriage, which survives the marriage.

Clergy-penitent communications are protected. The government holds several privileges of its own, including the state secrets privilege, the deliberative process privilege for pre-decisional policy discussion, and the informer's privilege protecting the identity of a person who reports a violation. These matter to reporting regimes, and are one reason the procedure for filing a complaint under seal without service on the defendant works as it does.

Waiver, subject matter waiver and inadvertence

Voluntary disclosure of a privileged communication waives the privilege as to that communication. Rule 502(a) limits how far the waiver spreads: an intentional disclosure in a federal proceeding extends to undisclosed material only if the disclosed and undisclosed communications concern the same subject matter and ought in fairness to be considered together. That provision was written to stop a single deliberate disclosure from opening an entire file.

Rule 502(b) addresses accidents. A disclosure made in a federal proceeding does not waive the privilege if the disclosure was inadvertent, the holder took reasonable steps to prevent it, and the holder promptly took reasonable steps to rectify the error, including following the clawback procedure in the civil rules. Reasonableness is assessed against the volume and the review method used.

Rule 502(d) is the practical answer in document-heavy cases. A federal court may order that disclosure in the litigation before it does not waive privilege, and the order is then enforceable in any other federal or state proceeding. Rule 502(e) agreements between parties, by contrast, bind only those parties unless incorporated into a court order.

Asserting the privilege on the record

A privilege must be claimed, described and supported. In discovery this means a log identifying each withheld item and stating the basis in enough detail to let other parties assess the claim without revealing the protected content. A blanket refusal is treated in many courts as a forfeiture of the claim.

Disputes are decided by the court under Rule 104(a), which allows the court to consider material that would not itself be admissible, including the documents in camera. Cross-border matters complicate this further, since foreign confidentiality rules and blocking statutes may conflict with a production order, a problem taken up in obtaining discovery from a party located abroad. Contractual attempts to convert confidentiality into silence about wrongdoing raise separate questions, addressed in employment agreements that restrict protected disclosures.