1 and ii the party shows that it has substantial need

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(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without Page 55 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar undue hardship, obtain their substantial equivalent by other means. Exceptions to the Privilege Crime-Fraud Exception o Communications seeking an attorney’s services with respect to ongoing or future crimes or frauds are not privileged. o Two-part test: (1) Prima facie showing that when the client sought advice of counsel, the was engaged in criminal or fraudulent conduct, planning such conduct, or committed such an act subsequent to obtaining the advice of counsel; and (2) Showing that the attorney’s assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it. o In-Camera Review United States v. Zolin 104(a) does not prohibit in camera review to determine whether something is indeed privileged. The party claiming the exception to the privilege has to give a sufficient factual basis to support a reasonable belief that an in camera review may yield evidence that establishes the exception’s applicability. The threshold may be met only with relevant, lawfully obtained evidence that has not been adjudicated to be privileged. There is a preponderance of the evidence standard to show the evidence falls within the exception. Waiver o Only the client can waive the privilege. The attorney can do it on behalf of the client with the client’s permission. o If the client is present and the information sought is privileged, but the privilege is not asserted, the privilege is waived. o Disclosing the information to a third party breaks the waiver. o FRE 502: Limitations on Waiver (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney- Page 56 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
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