IN GENERAL

1. The content of communications made in the course of privileged relationships cannot be admitted into evidence if the privilege is properly asserted by the person who made the communication. Privileges are disfavored and therefore strictly construed.

2. For most privileges, only confidential communications are protected. A communication is confidential must satisfy two tests to qualify as confidential.
(A) Intent. The communication must have been intended to be confidential at the time it was made. Statements intended to be transmitted to others are not privileged, E.G., husband told wife to tell police he had been drinking, not privileged spousal communication because intended to be told to police).
(B) Confidential in fact. The communication must have been confidential in fact and not overheard by third persons.

3. General principles of agency apply to privileged relationships. Statements by agents of the client or to agents of the attorney/doctor etc., are usually privileged.

4. As a general rule, communications designed to further a fraud or criminal enterprise are not privileged.

5. Claims of privilege are to be made on a question-by-question or document-by-document basis. Only the person who holds a privilege (or his/her attorney) may assert it. Privileges are usually asserted pretrial to resist discovery.

6. Waiver
(A) In general. Privileges restrict relevant evidence and are therefore disfavored. They are easily waived. Waiver can be either explicit or implicit, but can be accomplished only by the holder of the privilege.
(B) Placing the subject matter in issue. If a party places the subject-matter of a privilege in issue in a complaint or affirmative defense, the privilege is usually waived, e.g., bringing a personal injury action waives doctor-patient privilege.
(C) Voluntary disclosure. A privilege is waived if the holder voluntarily discloses, or consents to someone else disclosing, any significant part of the privileged communication.
(D) Introduction of evidence. If the holder introduces evidence concerning the communication (not just the subject matter of it), the privilege is waived, e.g., client takes stand and testifies to conversations with his attorney).
(E) Failure to assert privilege. Failure to assert a privilege at trial, whether or not the holder was represented by an attorney, is a waiver.

ATTORNEY-CLIENT PRIVILEGE

1. Confidential communications made by clients to attorneys in the course of the professional relationship are privileged. The attorney must have been consulted for legitimate professional reasons, although it is not necessary that a suit be pending or the attorney be actually employed.

2. Agents of attorney. The privilege covers communications to the clerks and agents of an attorney as long as they are assisting representation and the communication involves a subject within the scope of that representation. Agents include independent experts hired by the attorney to assist in evaluating the case if the information will be kept confidential.

3. Agents of client. The privilege also covers statements made by agents of the client.

4. Corporate Clients
(A) In general. The attorney-client privilege is available to corporate clients. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the U. S. Supreme Court interpreted the federal privilege as protecting the communications of any employee who communicates with the attorney on behalf of the corporation if the communication concerns corporate (not personal) matters within the scope of the employee's duties.
(B) Who may assert? The privilege probably may be asserted by any management level agent of the corporation, by the corporation's in-house counsel, or by outside attorneys, but not by lower-level employees or individual directors without proof of specific authorization.
(C) Waiver. The privilege may be waived by resolution of the board of directors, by any executive authorized to act for the corporation in important matters, or by the corporation's attorney. If an ordinary employee makes a privileged statement to the attorney and then voluntarily discloses it, that is probably not a waiver because the employee does not hold the privilege. The privilege also may be waived if it is not treated as confidential within the corporation itself.
(D) In-house counsel. Communications between corporate officers and in-house counsel are problematic because of the general counsel's mixed legal/business role. If outside counsel is present or the communication is made specifically to be transmitted to outside counsel, it would seem to be privileged. However, routine communications to in-house counsel and reports prepared by him or her for the officers or directors have generally been treated as non-privileged business advice in other jurisdictions. The federal rule is that if in-house counsel has nonlegal responsibilities (e.g., has vice-president status), the corporation must prove clearly that the attorney was acting in a legal capacity at the time in question. Merely saying that counsel was acting as an attorney is inadequate.
(E) Investigation Reports. If outside counsel hires an investigator who talks to employees and then writes an evaluative report to the attorney, the report is covered by the privilege as long as it involves the legal issue for which the attorney was hired and the investigator was retained by the attorney for the purpose of assisting him or her in rendering legal assistance to the client. If the investigator will also be a witness at trial, the report is neither privileged nor work-product.
(F) Communications between attorneys. Communications between attorneys who are not co-counsel, are generally not privileged, even if they represent clients with similar interests.

5. When Privilege Does Not Apply

(A) Physical evidence does not become privileged when a client turns it over to an attorney.
(B) If an attorney was acting for two parties, there is no privilege in a subsequent lawsuit between them, e.g., dispute among heirs to will drafted by attorney.
(C) There is no privilege in lawsuits or other disputes between client and attorney; or if the client alleges incompetent representation in a post-conviction proceeding.
(D) The privilege does not usually apply to fee arrangements, the fact of representation, or the identify of the client.
(E) Communications intended to be made public are not privileged.
(F) Communications that further an ongoing or future crime or fraud are not privileged.

OTHER PRIVILEGES:

1. HUSBAND-WIFE. Confidential communications between spouses are privileged. This privilege covers verbal communications, communicative acts, and information gained by reason of the intimacy of the marital relationship, but does not protect ordinary acts and conduct in the spouse's presence. The privilege only applies if there is a valid marriage. There is no privilege for engaged couples, nor for couples living together but not legally married. If the act or communication has nothing to do with or is directly deleterious to the marriage, such as threatening to kill the other spouse, it is not privileged.

2. RELIGIOUS PRIVILEGE. Confidential communications made to a priest, minister, or other religious leader are generally privileged. The religious privilege covers both formal confessions made as part of church ritual and confidential communications seeking spiritual guidance from clerics in their professional roles as spiritual advisers or counselors.

3. REPORTER'S PRIVILEGE. A reporter or other employee of a bona fide news organization has a limited privilege to refuse to disclose information gathered in the course of preparing a news story. Reporters may protect confidential sources and have a limited constitutional privilege against significant intrusion into the news-gathering process that would chill freedom of the press. Unlike other privileges, this one belongs to the reporter, not the people giving information. The privilege is not absolute and may be overridden by applying a balancing test that considers the need for the information to assure a fair trial.

4. PHYSICIAN-PATIENT PRIVILEGE. Confidential communications from a patient to a physician made in the course of medical consultation or treatment are privileged. The privilege covers both statements by the patient and information learned by the physician as a result of medical examination and testing -- basically the whole contents of the medical file. However, if the patient seeks compensation for her injuries through a lawsuit or other claim, the privilege is waived with respect to that medical condition and any other medical matter causally and historically related to the condition put in issue by the pleadings. Statements to technicians and nurses working at the behest of a physician are also generally privileged, but the privilege does not apply automatically to all staff in a hospital. Statements to nurses employed by hospitals, who are generally not under the direct supervision of a particular doctor, are not within privilege. In most states, chiropractors are considered physicians for privilege purposes. many states also have laws making certain kinds of medical records, such as AIDS tests, confidential.

5. Psychologist-Patient Privilege. Confidential communications made by a patient to a psychologist, and information acquired from the patient during examination, are generally privileged. State laws vary. Non-psychologists counselors and therapists are covered in many states.

6. Accountant-Client Privilege. in most states, confidential communications made to an accountant in the course of a professional relationship are privileged. The privilege extends to information learned by the accountant during an audit, but does not cover papers and documents prepared independently of the audit and given to the accountant.