Chapter8 - CHAPTER 8 _ Privileges B. THE FEDERAL RULE...

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CHAPTER 8 ______________________________ Privileges B. THE FEDERAL RULE Question for Classroom Discussion [p. 560] Diversity action in federal district court by Plaintiff against Defendant, a trucking company. Plaintiff seeks damages for personal injury following a collision between her car and Defendant’s 18-wheeler. At trial, Defendant calls Witness, who secretly “bugged” Plaintiff’s attorney’s office and listened in during a private conversation between Plaintiff and her attorney. In that conversation, Plaintiff allegedly admitted being responsible for causing the accident. Plaintiff objects on grounds of attorney-client privilege. The federal courts in the state whose substantive law governs the case hold that otherwise privileged conversations overheard by an eavesdropper are privileged if the parties took reasonable steps to ensure confidentiality. The state’s own courts, however, hold that otherwise confidential communications lose their privileged status if they are overheard. How should the court rule on Plaintiff’s objection? C. GENERAL PRINCIPLES Questions for Classroom Discussion [p. 567] 1. Plaintiff, who has brought a personal injury action, meets with her attorney in a busy pub to discuss Plaintiff’s case. Though they speak in hushed tones, their conversation is overheard by Witness, a friend of Defendant, who is sitting at the next table. At trial, Defendant calls Witness to testify about the conversation she overheard. Plaintiff objects on grounds the conversation was privileged. How should the court rule? 2. Defendant, out on bail awaiting trial on a criminal charge, speaks with her attorney about the case using a cellular phone. Unknown to Defendant, a glitch in the signals causes the conversation to be transmitted to Witness, who is located nearby speaking on her own cellular phone. Witness reports the conversation to the police, and the prosecution calls her to testify at trial about what she heard. Defendant objects on 1
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grounds of privilege. How should the court rule? 3. Defendant has been charged with murder and is housed in the county jail awaiting trial. In preparation for trial, Defendant meets with her attorney in a conference room provided for that purpose. Unknown to Defendant and her attorney, part of their conversation is overheard by a jail guard who was sitting in the room next to the conference room. At trial, the prosecution calls the employee to testify about the conversation. Plaintiff objects on grounds of privilege. How should the court rule? What if the guard is in plain view but the jail refuses for security purposes to allow prisoners to meet privately with visitors, including lawyers? 4. Breach of contract action. Plaintiff takes Defendant’s deposition, and asks Defendant about conversations she had with her attorney. Defendant objects on the basis of the attorney-client privilege. Plaintiff responds that the privilege does not apply because the deposition is part of the discovery process, not the trial, and the rules of evidence
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Chapter8 - CHAPTER 8 _ Privileges B. THE FEDERAL RULE...

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