This is an extract of our Privileges document, which we sell as part of our Evidence Outlines collection written by the top tier of University Of Virginia students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
PRIVILEGES Rationale: value of the evidence < value of the right/relationship. Incentivize certain communications. FRE 501: Civil case where state law supplies ALL the rules of decision => state priv law applies
States often different: often recognize doctor-patient priv; ADVERSE INFERENCE? Generally not allowed in a civ or crim case. But court has discretion (403).
-Ex: using priv as sword and shield. "If opposing had a good case they'd show X" X is prived by you.
*Applied aggressively (unlike other privs). (Rationale: don't want to chill these communications). 1) Communication:
-only the substance of the communications are protected.
-"Applies where necessary to achieve its purpose" - "protects disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." (Tornay). Ex: Identity of the client: protected ONLY IF revealing their ID would necessarily reveal what they discussed with the attorney.
-Ex: anonymously paying taxes owed. Client ID is privileged, since ID is akin to communication that client has delinquent tax returns.
-Ex: paid atty with a counterfeit bill. Client ID NOT privileged. NOT protected:
-the underlying information/documents communications were based on.
-can't just run your shit through an atty to hide it).
-observations made in the context of communications (client's responsiveness, logical reasoning, competence, handwriting, appearance, sound of voice).
-Competence of client: (MAJ) atty can be questioned about whether they believed client was competent, even though those impressions can be based on contents of communications too 2) Between a lawyer and client Lawyer: person authorized to practice law in the relevant jurisdiction, or reasonably believed by the client to be authorized to practice law. AND THEIR AGENTS. Intermediary doctrine: non-lawyers with "menial or ministerial responsibility that involves relating communications to an attorney" covered. (Kovel).
-agents covered if their input is essential to the lawyer's provision of legal services.
-paralegals, summer clerks, experts, private compliance consultants (KBR).
-NOT insurance adjusters (Pasteris), accountants. Attorneys of co-parties covered as well, when comm. concerns a joint claim/defense Client:
-dead men included, their estate controls the privilege. (Swidler).
-Corporations: does particular employee = corporation for purposes of privilege?
If yes, =>corporate board controls the privilege. Employee himself is unprotected though. Upjohn Factors: (key is what the attorneys intended, and what the particular individuals were told about the communication).
-understanding of confidentiality (without one, likely not privileged).
-employee communicated w/ GC (atty) acting in legal capacity, for purpose of helping company get legal advice. And employee knew that was the purpose.
-employees directed to comply by their supervisors (shows corp thought this was necessary for provision of legal services).
-communication concerned matter within the scope of the employee's duties 3) Made in confidence: include only the lawyer, client and necessary support staff.
-Reasonable precautions must have been taken that communications not be disclosed to 3rd ptys
-Ex: not reasonable, using company email if you've been told that they are monitored.
-Third parties: attys who aren't retained for the matter; adult family members; NOT kids who cannot understand the matters discussed.
-not communications made w/ intent that they be passed on to a third party.
-Lawless: financial docs to atty for tax return, intent for some info to be transmitted to 3rd party.
-But see Apotex: technical info sent to patent attys were covered. (legal v. non-legal too hard)
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