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Privileges Outline

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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.

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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.

-Attorney-Client Privilege
*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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