Asserting Privilege under the Rules of Evidence

The Law of Privilege: Protecting Confidential Relationships During Lawsuits

Common Laws of States, the Federal Rules of Evidence, and the Virginia Rules of Evidence Create Privileges that Prevent Testimony About or Disclosure of Confidential Communications and Information from Specific Relationships

Evidence rules aim to help the judge or jury decide the truth and secure a just determination in a lawsuit.

But statutes, criminal and civil procedure rules, and written decisions from judges (known as common law) combine to create the law of privilege.

A successful claim of privilege is a defense to requests for testimony or documents from specific confidential relationships, even if this information is relevant and material evidence that would help the judge or jury decide the case. Indeed, privilege may allow a witness to refuse to testify or produce documents on particular issues or a party to the lawsuit to prevent a witness from testifying about them.

This article discusses commonly asserted privilege rules in Virginia federal and state courts.

Comprehending testimonial privileges is a crucial aspect of legal strategy. It enables you to prevent unfavorable testimony and documents from being used as evidence while compelling your opponent to provide information that could be instrumental in winning your case or securing a fair settlement.

Read on to learn about privilege law and how it may apply to your car accident or work injury case.

Then contact us if you have questions about your legal remedies.

What is Testimonial Privilege?

Claiming privilege allows the privilege holder to refuse to testify or produce evidence against someone with whom they have a special relationship or about a specific subject matter.

Or, if the privilege holder differs from the person asked to disclose or produce information, the holder can prevent the other person from testifying about the subject matter or producing related documents if the privilege claim succeeds.

Who the holder is depends on the specific privilege claimed.

Can I Claim Privilege for Oral or Written Communications?

Both.

A claim of privilege applies to words spoken or written.

In What Judicial Proceedings Does the Law of Privilege Apply?

The defense of privilege is a strong one.

Claims of privilege apply throughout the litigation process, including pretrial discovery (depositions, interrogatories, subpoenas duces tecum, requests for production of documents), motions hearings, and trial (or workers compensation hearing).

Can a Party or Witness Waive Privilege?

Yes.

A witness or party may waive the privilege or decline to assert it, allowing the witness to testify about the subject matter.

Waiving privilege may be deliberate or inadvertent.

For example, revealing confidential information, communications, or papers to a third party, even accidentally, may waive the privilege claim.

Is Privilege Absolute?

Not always.

The party looking to violate the privilege may persuade the court that their need to know the information sought outweighs the privilege.

Who Has the Burden of Proving a Privilege Applies?

The party claiming the privilege must prove the communication is protected.  

Generally a mere assertion by a party or a witness that the matter is confidential and privileged is insufficient. Instead, the person claiming a privilege must show by the circumstances that one of the privileges applies.

Who Decides if a Testimonial Privilege Exists?

The trial court judge (the deputy commissioner in a workers compensation case) decides if the privilege claim stands.

Usually the judge will review the privileged communications or documents in camera, then decide on the privilege claim.

What are the Legal Sources for Testimonial Privilege?

Many privileges come from common law, meaning courts have created the testimonial privilege claimed in past decisions.

Other privileges come from federal or state statutes.  

And some testimonial privileges come from the evidence rules themselves.

For example:

Privileges under the Federal Rules of Evidence

The Federal Rules of Evidence include two rules on privileges.

The first, Federal Rule 501, provides a general rule on privilege. It says:

The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of privilege unless any of the following provides otherwise:

• • • the United States Constitution;
    • a federal statute; or
    • rules prescribed by the Supreme Court

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

The second rule, Rule 502, defines the attorney-client privilege and work product protection and addresses limitations on waiver of these privileges.

Privileges under the Virginia Rules of Evidence

Rule 2:501 of the Virginia Rules of Evidence is a general privilege rule like the Federal Rule of Evidence 501.

The Virginia rule says:

Except as otherwise required by the Constitutions of the United States of the Commonwealth of Virginia or provided by statute or these rules, the privilege of a witness, person, government, State, or political subdivision thereof, shall be governed by the principles of common law as they may be interpreted by the courts of the Commonwealth in light of reason and experience.

But unlike the Federal Rules of Evidence, the Virginia Rules of Evidence include several rules addressing specific privileges, some of which come from the Code of Virginia:

• • Rule 2:502: Attorney-Client Privilege
  • Rule 2:503: Clergy and Communicant Privilege
  • Rule 2:504: Spousal Testimony and Martial Communications Privileges
  • Rule 2:505: Healing Arts Practitioner and Patient Privilege
  • Rule 2:506: Mental Health Professional and Client Privilege
  • Rule 2:507: Privileged Communications Involving Interpreters

Does State or Federal Law Apply to Privilege Claims?

In civil cases, federal law generally governs privilege claims for federal law claims. In contrast, state privilege law applies to state law claims.

Common Types of Privilege

Common claims of privilege from testifying include the following:

Privilege for Professional Relationships

Many professional relationships depend on correct information shared between the professional and the client.

The below privileges protect this sharing of information.

• • Attorney-client privilege: Confidential communications between an attorney and their client made during the professional relationship and concerning the subject matter of the representation are privileged from disclosure. The objective of this privilege is to encourage clients to communicate with attorneys freely. This privilege is one of the oldest and strongest available to litigants.

• • Physician-patient privilege: This privilege, also called the doctor-patient privilege, excludes from discovery or evidence in civil cases any confidential communication between the patient and a physician to diagnose or treat an injury or condition unless the patient consents. But many exceptions exist in workers compensation and personal injury cases, requiring disclosing otherwise protected health information.

• • Mental health professional (therapist)-client privilege: Unless a client gives consent, no licensed professional counselor, licensed clinical social worker, licensed psychologist, or licensed marriage and family therapist can testify about matters related to their professional capacity in a civil action.

• • Priest-penitent privilege: Under Virginia law, the priest-penitent privilege belongs to the clergyman, not the layman. Indeed, the civil priest-penitent privilege statute “plainly invests the priest with the privilege and leaves it to his conscience to decide when disclosure is appropriate.”

• • Accountant-client privilege: This privilege protects communications between you and your accountant. Though some states recognize this privilege, Virginia does not.

• • Journalist-news source privilege: Courts cannot force news reporters to reveal their sources.

Business Privileges

Although no general business privilege exists, a company or governmental entity may protect many records, reports, and information kept and created during regular business from disclosure.

• • Trade secret protection: In many cases, the owner of a trade secret or other confidential research, development, or commercial information has the privilege to refuse to disclose the secret, and to prevent another from showing it.

• • Peer review privilege: Virginia Code Section 8.01-581.17 provides a privilege to medical staff committees, utilization review committees, peer review committees, and other committees that oversee credentialing for medical providers or review the patient care provided by staff.

• • Legislative privilege: Under the Constitution of Virginia, a Member of the General Assembly holds the legislative privilege regarding communications protected by the Speech or Debate Clause. This privilege extends to legislators and legislative committees.

Privileges for Domestic Relationships

The law of privilege recognizes the importance of protecting the marital state.

• • Husband-wife privilege: This privilege protects against the disclosure of private communications between a husband and wife. It survives termination of the marriage by annulment, divorce, death, or separation. In addition, this privilege allows one spouse to prevent another spouse from testifying adversely.

• • Parent-child privilege: This privilege, which only few states recognize, protects communications between a parent and their child.

Criminal Privilege

• • Privilege against self-incrimination: This privilege, founded in the Fifth Amendment, allows a criminal suspect or defendant to refuse to answer an incriminating question.

Attorney Work Product Doctrine

This rule is closely related to the attorney-client privilege. Generally, material such as “interviews, statements, memoranda, correspondence, briefs, mental impressions, or personal beliefs,” which are “prepared by an adversary’s counsel with an eye toward litigation,” may be free from discovery.

Use the Law of Privilege to Protect Your Privacy and Win Your Lawsuit

Seeking compensation for harm should not require you to give up your privacy.

Our attorneys help accident victims win while protecting their confidential relationships using the law of privilege.

Call (804) 251-1620 or (757) 810-5614 for help with your case.