2.8.11

Handout #11- Privileges
Tomorrow Night- Pleadings returned
MIDTERM- next Thursday

Discovery
p 219
If you do your discovery right there are no surprises at trial, contrary to tv depictions.
Inherent conflict- giving the other side information may damage your client
Can fix almost anything that you know about, best to get the weak points out in the open.

Purpose of discovery
1.learning stuff
2.eliminating issues
3.preserving testimony

Discovery Project- use your bullets wisely (efficiency). get to the meat of the issue.

Start with Theory- be solid in your causes of action before starting discovery
Set Routine?- every case is different, be flexible in how you proceed. Don't be too predictable.

5 Types of Discovery
1. Interrogatories
2. Depositions
3. Request for Documents
4. CR 35 Physical/Mental Exams
5. Requests for Admission

Limits on Discovery
p 230

Communication Privileges (8) (Need All 3 parts)
a) Confidential Communications
b) Made within a protected relationship
c) And which are made with NO third party unnecessary to the relationship present (think: Erik & Lyle Menendez! (confessed to doctor in earshot of receptionist))
(comm. privileges different- not work product, 5th Amendment, defamation within pleadings, etc.)

1. Attorney Client RCW 5.60.060(2)
Future acts not covered.
2. Physician Patient RCW 5.60.060(4)
Don't need to be doctor, anyone you consult for medical advice (chiropractor, naturopath)
90 days after filing, claimant deemed to waive. 5.60.060(4)(b) - MIDTERM QUESTION
3. Psychologist-Client 18.83110
4. Priest-Penitent RCW 26.44.060
You don't have be a priest, any spiritual advisor, someone who functions in an advisory capacity.
5. Marital
Confidential communications, during the marriage are privileged. Divorce does NOT destroy privilege.
Exceptions- litigation against each other, crime of violence, one spouse against child.
6. Spousal Incompetence
One spouse cannot testify about ANYTHING (not just confidential) provided the other spouse objects, only applies at trial.
7. Optometrist- Patient
Not an ophthalmologist (physician)
8. Public Officer RCW 5.60.060(5)
Cannot be examined as to official communications if the public interest would suffer.
EX Mad Cow Scare, AIDS tainted blood.
Where is the safety check? In Camera review- Judge's chamber review
9. Grand Juror 10.27.090
Cannot be compelled to tell what happened in the proceeding. Different from every other privilege, cannot be waived. Court can issue gag order. - MIDTERM QUESTION

Journalist Privilege?
Branzburg v. Hayes (1972)
Public has a right to every man's evidence. As a matter of Federal Law- no such privilege.
States enacted Shield Laws- to allow journalists to protect sources.
Better to stop crime than write about it. Judges usually side with 6th Amend. over 1st Amend.

Privileges can be WAIVED by privilege holder.

Inadvertent Disclosure of privileged documents = not doing your job!
If you produce documents that are work product, you open the door, privilege is waived in full.
Mistakes happen, but keep it to an absolute minimum.

Market Share Liability- EX Cigarettes caused cancer- will assess liability according to market share.

5th Amendment- state cannot compel a citizen to testify against himself.
(cannot be asserted during cross-examination) Usually does not apply to civil cases.
Criminal exceptions-
1. If statute has run, state can compel you to testify to what you know.
2. If granted immunity.

Confidentiality Agreements/Protective Order
Generally happen when trade secrets, customer lists, etc. are at stake.
You are responsible if that information gets out. Keep under lock and key, and destroy after.

p 236
Mutual Disclosure CR 26
Only Federal- State-no duty to disclose
Doesn't do you that much good anyway- 30-90days in advance of trial, will turn over information helpful to their case, not yours.

Voluntary Cooperation
Thin line of reasonable resistance.
EX "test analysis and reports" never asked for tests. Withheld and upheld.

Deposition
Misconceptions
1. To learn about case -FALSE Depositions only effective if you are prepared. You must know your case.
"The key is not the will to win, everybody has that, it is the will to prepare to win that is important."
EX Bruce to Coroner "Did somebody die?"

p 249
Depositions
1. Oral - spontaneous, see reactions, ask follow ups, no help.
2. Written Questions
3. Telephone
If they're worth deposing, they're worth deposing right.
Limitations on time exist in federal rules, and are creeping into state rules as well.

Types of Roles In Deposition
1. Taking deposition (deposing deponent)
2. Defending
3. Attending (EX attending deposition of a co-defendant) You may ask questions as well. Your role may be small or large role.
Attorney who "noticed" (set) the deposition asks questions first.
How do you find out about depositions? Subpoenas. Everyone who has appeared in the case must be put on notice.
Depositions may take place ANYWHERE, but usually in law office.