Privileges in federal court: general rule, psychotherapist, corporate attorney-client, and waiver

Black-letter propositions

1. 01

   In federal court 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 rules prescribed by the Supreme Court provide otherwise.

2. 02

   In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

3. 03

   Confidential communications between a licensed psychotherapist and a patient in the course of diagnosis or treatment, and the therapist's notes of the sessions, are protected from compelled disclosure (Jaffee v. Redmond).

4. 04

   The psychotherapist privilege extends to confidential communications made to licensed social workers in the course of psychotherapy, and the Court rejected a balancing test that would weigh the patient's interest against the need for evidence case by case.

5. 05

   The Court did not doubt that there are situations in which the psychotherapist privilege must give way, for example if a serious threat of harm to the patient or to others can be averted only by disclosure by the therapist.

6. 06

   Communications by a corporation's employees to corporate counsel, made at the direction of corporate superiors to secure legal advice and concerning matters within the scope of the employees' duties, are covered by the corporation's attorney-client privilege, and the privilege is not limited to a control group of upper-level management (Upjohn Co. v. United States).

7. 07

   In the corporate context, middle-level and lower-level employees will frequently possess the information corporate counsel needs, so limiting the privilege to a control group would frustrate its purpose of encouraging full and frank communication.

8. 08

   The work product doctrine applies to Internal Revenue Service summonses.

9. 09

   The attorney-client privilege survives the client's death in a case such as one in which an attorney's notes of a conversation with a client shortly before the client's suicide are sought by a prosecutor (Swidler and Berlin v. United States).

10. 10

    When a disclosure of an attorney-client communication or work product is made in a federal proceeding and waives the protection, the waiver extends to undisclosed communications only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and they ought in fairness to be considered together.

11. 11

    An inadvertent disclosure in a federal proceeding is not a waiver if the disclosure is inadvertent, the holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error.

12. 12

    A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before it, in which event the disclosure is not a waiver in any other federal or state proceeding.

Use this attack sequence under time

Common wrong turns

• The corporate privilege is not limited to the control group of upper management.
• The psychotherapist privilege is not subject to a case-by-case balancing test, though it may give way to prevent serious harm.
• An inadvertent disclosure does not waive the privilege when the holder took reasonable steps before and after.

Worked example

A company's lawyer, at the direction of the chief executive, sends a questionnaire to mid-level managers about possible improper payments. The government demands the responses.

Practice this topic

Rule 501 and the psychotherapist privilege

Federal Rule of Evidence 501 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 rules prescribed by the Supreme Court provide otherwise, and that in a civil case state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court held that confidential conversations between a police officer and a licensed clinical social worker in counseling, and the therapist's notes, are protected from compelled disclosure under Rule 501. The Court explained that effective psychotherapy depends on an atmosphere of confidence and trust, held that the privilege extends to licensed social workers, rejected a balancing component, and said there are situations in which the privilege must give way, such as a serious threat of harm that can be averted only by disclosure.

Attorney-client privilege for corporations and after death

In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Court held that the corporation's attorney-client privilege covered communications from employees to counsel made at the direction of corporate superiors to secure legal advice on matters within the scope of the employees' duties, and it rejected the control group test because middle-level and lower-level employees often have the information counsel needs and the test would frustrate the purpose of the privilege. The Court also held that the work product doctrine applies to IRS summonses.

In Swidler and Berlin v. United States, 524 U.S. 399 (1998), the Court held that an attorney's notes of a conversation with a client are protected by the attorney-client privilege after the client's death, because it has been overwhelmingly accepted for well over a century that the privilege survives death in a case of this kind and the government had not shown that reason and experience required a departure from that rule.

Waiver and Rule 502

Federal Rule of Evidence 502(a) provides that when a disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication only if the waiver is intentional, the disclosed and undisclosed communications concern the same subject matter, and they ought in fairness to be considered together.

Rule 502(b) provides that an inadvertent disclosure in a federal proceeding does not operate as a waiver if the disclosure is inadvertent, the holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error. Rule 502(d) allows a federal court to order that disclosure connected with the pending litigation is not a waiver in any other federal or state proceeding, and Rule 502(e) says an agreement on the effect of disclosure binds only the parties unless it is incorporated into a court order.

Frequently asked questions