The Law of Evidentiary Privilege
Privileged communications are communications which take place in the context of legally protected relationships which protect the communications from disclosure. When those relationships are successfully invoked to prohibit the disclosure of these communications in a trial or hearing, they by definition exclude relevant information from the consideration of the trier of fact. Because successful privilege invocations thus suppress the truth, there must be powerful policy reasons which support the suppression of the truth, reasons so important that the result is that pertinent and relevant information is withheld from consideration. Some privileges are testimonial; they serve to preclude particular persons from testifying as to particular matters.
Others are substantive; they serve to preclude the dissemination of the information entirely, regardless of who is testifying. Some are both.
This course explores the genesis of the creation of common-law and statutory privilege, the reasons for privilege, and the allocation of constitutional and other legal authority among the coordinate branches of government to create and rule on the existence of privilege. With national political events triggering an increasing number of assertions of privilege and with assertions of privilege increasingly dominating the juridical landscape in the life of a trial, the policy reasons and justifications for privilege -- and the exceptions to privilege -- have come into sharp focus. The course will also discuss familiar and important privileges: executive privilege; the testimonial privilege; the attorney-client privilege; the deliberative process privilege; the work-product privilege; the accountant-client privilege; and other recognized privileges.
In addition to providing this theoretical overview, the course will provide students with practical instruction about the identification and assembly of privileged information and the assertion of privilege in civil litigation. While a background in civil procedure will be important to comprehension of the material, it will not have been necessary for students to have taken an evidence course to be able to appreciate and understand the class materials.
Because there is no definitive casebook on the law of privilege, the instructor has assembled pertinent materials for class discussion.