All circuits by the 2d and 3d follow this rule

Info icon This preview shows pages 54–56. Sign up to view the full content.

All circuits by the 2d and 3d follow this rule. Confidential Communications Scope o Both spouses are the holders of the privilege. The party- spouse can keep the witness-spouse from testifying. Also, neither spouse has to be a party. o Covers only communications. Directives and instructions are communications. o Does not apply if in the presence of a third party. Young children do not break the privilege. The spouses must take reasonable precautions to keep the communications confidential. Cases to Which the Confidential Communications Privilege Applies o The confidential communications privilege applies to both civil and criminal cases. Exceptions o (1) Where the purpose of the communication was to enable/plan a crime or fraud. This only applies to future or ongoing crimes. o (2) Injuries by one spouse to the other or to their minor children. o Attorney-Client Privilege The holder of the privilege is the client, but the attorney has the obligation to protect the client’s privilege. Elements (1) Relationship of client and attorney; o This is subjective. If the client reasonably believes the person he is consulting is an attorney, the communication is privileged. Page 54 of 65 Nathan Hardymon
Image of page 54

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

Evidence Spring 2017 Outline Lollar (2) Communication by client to attorney (or attorney’s agent); o The communication is what is privileged, not the underlying facts. o This doesn’t cover acts; only communications. (3) For the purpose of securing legal services; (4) Made in confidence; and o If the client prepares a documents for the lawyer in confidence, it is privileged. Not so if the document was already prepared. o Third party’s break the privilege, unless the third party is necessary to the consultation. (5) Not for the purpose of committing a crime or tort. Swindler & Berlin v. United States The privilege surivives death. Business Entities as Clients Upjohn v. United States o Generally, the control group, those who can make decisions that affect the company, are the ones covered. o Factors to determine who is: (1) Attorney was acting to provide legal services; (2) Information from lower level employees was needed to provide the services; (3) Communications involved matters within the scope of the employee’s corporate duties to the company; (4) Communications were made by employees at the direction of corporate superiors; (5) Employees were aware that information was being obtained for purposes of the corporation obtaining legal advice; and (6) Employees were told that communications were highly confidential. The Work Product Doctrine FRCP 26(b)(3): o Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)
Image of page 55
Image of page 56
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern