Although discovery is broad and compulsory, exceptions apply where the information sought is privileged or if there is a protective order in place that covers the information sought. Privileges and protective orders limit or disallow discovery of certain types and topics. This module will focus on protective orders and privileges.
Any recipient of a request or subpoena for discovery may seek a protective order from the court to stop a discovery request. A “protective order” is a written command or instruction of the court that restricts or prohibits a party from obtaining discovery from either an opposing party or a witness. A party who wants to obtain a protective order must file a motion for protective order either in the court where the litigation is pending, or the judicial district where the discovery is to take place if, for example, the discovery sought is a deposition.
The court may for “good cause,” issue a protective order if the court determines that the discovery sought is annoying, embarrassing, oppressive, or unduly burdensome or expensive. “Good cause” is any legally sufficient reason, or one that demonstrates that the order should be granted.
There are several ways that the court can limit discovery, which include:
- Disallowing the discovery or disclosure altogether;
- Specifying the terms of the discovery or disclosure, including place, time, and expense allocation;
- Directing the party to use a discovery method other than the one sought;
- Limiting the scope of the discovery to particular matters;
- Designating the individuals that can or must be present during the discovery;
- Sealing a deposition, to be opened only upon court order;
- Requiring that confidential commercial information, or research and development information only be revealed in a particular way; and
- Requiring that the parties file specified information or documents simultaneously and in sealed envelopes, only to be opened under circumstances identified by the court.
Before filing a motion for protective order, one must, in “good faith,” confer (or at least try to confer) with the party seeking the discovery to resolve the situation without court involvement. “Good faith’ means done in honest belief or purpose, faithfulness to one’s obligation or duty and absence of intent to defraud. In fact, as part of the motion for protective order, the moving party (the party seeking the order) must certify that it conferred or attempted to confer with the other party. Whether a good faith attempt to confer was made determines which party pays the expenses associated with the motion for the protective order.
If the protective order is granted, the court may order the party who sought the inappropriate discovery (or his attorney, or both) to pay the moving party’s reasonable expenses incurred in making the motion, which would include the other party’s attorney’s fees. However, the court will not force the party who sought discovery to pay these fees if an award of expenses is unjust, such as if the moving party never conferred in good faith before the motion for protective order was filed.
When information is “privileged,” it means that a person who is asked to produce the document or information has the legal right (or, in some cases, obligation) to refuse to produce it. Information or communications that are privileged include: communications between an attorney and client, a clergyman and penitent, a doctor and patient and between spouses. An individual can also assert the privilege against self-incrimination, and the attorney work-product rule protects information produced by attorneys or their staffs in anticipation of litigation. Each of these privileges can also be waived, which would allow their discovery nonetheless.
The attorney-client privilege protects from disclosure any communications made in confidence between the attorney and client when the attorney-client relationship exists or when the communication was made to obtain or provide legal advice. So, for example, if a client has an initial consultation with an attorney but later decides not to hire to attorney (or the attorney decides not to take the case), the communications in that meeting are protected. The client controls the privilege, not the attorney. Therefore, it is the client who can assert the privilege to prevent either himself or the attorney from disclosing the information, and the information cannot be obtained unless the privilege is waived. The communications remain privileged even after the death of the client.
The clergyman-penitent privilege bars a religious leader from revealing information provided to him in confidence in his capacity as a spiritual leader or adviser for the purposes of absolution, confession, forgiveness or obtaining advice. Although application of the privilege varies state-by-state, generally, the layperson is the holder of the privilege (meaning it cannot be waived without his consent), and the privilege extends to communications with a variety of spiritual advisors, including priests, ministers, imams and rabbis.
The doctor-patient privilege protects from disclosure all communications that the patient makes to a doctor during treatments or consultations that are held to obtain medical treatment, including diagnosis. Most jurisdictions apply the privilege to mental health professionals as well, though federal courts limit the privilege between mental health professional and patients to psychiatrists, psychologists and licensed social workers.
The privilege may not protect information that could be observed by a layperson, including how ill the patient appeared, the clothes the patient was wearing or the dates of treatment. The patient holds the privilege, and therefore, the information cannot be disclosed unless the patient gives consent or waives the privilege. The holder implicitly waives the privilege, however, when the patient’s physical or mental condition is at issue in the litigation, which it generally is when physical or mental damages are claimed. For example, a patient cannot seek a million dollars in damages for mental distress and then refuse to release information about that mental distress.
In the case of the attorney-client privilege, clergy-penitent privilege and doctor-parties privilege, communications are not protected if they were made in furtherance of a plan to commit a crime.
The spousal privilege, or the “marital privilege” protects confidential communications made between spouses during the marriage. It does not protect communications between a now-married couple if the communications were made before the couple was married.
Both spouses control the privilege. Ether spouse can refuse to disclose or prevent the other from disclosing confidential information. The privilege protects only communications “made in reliance upon the intimacy of the marital relationship.” Therefore, routine exchanges between a married couple, or communications that would have been made to a stranger or neighbor are not protected. “Communications” can include unspoken conduct that was intended as a communication, such as a nod or wink. The privilege also applies to communications made during the marriage even if the parties later divorce.
Note that the spousal communications privilege stands in addition to and apart from the “spousal immunity” rule which prevents the government from forcing one spouse to testify against the other. This rule applies to all testimony, not just repeating communications. However, it applies only during the marriage and can be waived by the testifying spouse.
Privilege Against Self-Incrimination
Under the Fifth Amendment of the United States Constitution, one cannot be forced to bear witness against himself This includes statements and information sought in discovery. Therefore, one can assert the privilege against self-incrimination and avoid providing information during discovery if that information could incriminate oneself. The privilege belongs to the individual who might be incriminated. It does not protect someone from implicating himself in civil liability. Still, it does apply during a civil discovery process or trial if the information sought could lead to criminal incrimination.
For example, if a witness were being deposed in a civil case, and he was asked what he was doing at a given time, he could refuse to answer the question if his answer would demonstrate that he was participating in an illegal act, such as selling drugs. Likewise, if he were being interviewed in a criminal case, he could refuse to answer the question since it would provide incriminating evidence against him. However, if he simply was engaging in some embarrassing act or an act that would subject him to civil liability (like goofing off on his job), the witness could not refuse to answer the question based upon the privilege against self-incrimination.
The attorney work-product rule provides qualified privilege for the attorney’s work-product. Work product includes tangible materials that were either prepared by or for the attorney in anticipation of litigation. The attorney work-product rule differs from the attorney-client privilege in that work-product rule protects all materials produced in preparation for litigation while the attorney-client privilege protects communications, whether written or oral, between the attorney and his client. An attorney’s notes about a conversation that he had with his client would be work-product, whereas the conversation between the attorney and client itself would also be protected by attorney-client privilege.
The attorney work-product privilege is considered “qualified” because it is less than absolute. Rule 26(b)(3) of the Federal Rules of Civil Procedure states that although attorney work-product is generally exempt from discovery, a party may be able to obtain such information if they show substantial need for the materials in preparation for their own case, and that they cannot without undue hardship obtain the information from other sources. An example might be where an insurance company sues an estate based upon a non-fatal automobile accident that the deceased person was involved in, if the only recordation of the deceased’s recollection of the accident is from when he spoke to his attorney about it. Usually, these notes would be protected by attorney work-product. However, since the insurance company has no other means of obtaining the deceased’s side of the story, the court may allow discovery nonetheless because the party has substantial need of the information and it cannot be obtained by any other means. This exception does not apply to materials also protected by the attorney-client privilege.
Claiming and Waiving Privilege
If a party seeks to withhold allegedly privileged information sought in discovery, there are steps that he must take. First, the party must expressly claim privilege by stating (usually in writing) in response to the discovery request that information sought is privileged.
Second, the party must still describe the nature of the information sought. The description should not reveal the protected information itself but should give the party seeking discovery enough information to assess whether the claim of privilege is legitimate.
For example, often a person will produce a document that contains protected information, but they may black out or redact the specific information that is protected. By producing the whole document but redacting the privileged information, the producing party displays the context of the information, allowing the recipient party to understand why the information is protected. For example, a redacted document might read, “The witness then consulted his attorney, who suggested that she ———-.” The recipient is given the context of the protected information to make it clear that the redacted information is covered by the attorney-client privilege.
Privileges are void if waived. “Waiver” of a privilege occurs when it is relinquished, abandoned and not enforced when it could have been enforced. Waiver of a privilege is usually accomplished when the holder of the privilege (for example, the client in the case of attorney-client privilege, or a spouse in the case of marital privilege) reveals information that was privileged, whether by failure to claim the privilege, voluntary disclosure, or pursuant to some prior contractual agreement to waive.
Jurisdictions vary as to whether a privilege can be waived unintentionally, and to what extent information can be obtained when there is waiver. Some jurisdictions would allow access to the entire subject matter when there is waiver; others may only allow access to information covered by the narrowest interpretation of the waiver. Generally, privileged information that is overheard or discovered by an unknown eavesdropper is not waived, so long as the communicating parties did not act negligently.
Privileges can also be waived if the holder of the privilege puts the privileged communications in issue. For example, if a client files a malpractice suit claiming that his attorney’s representation was incompetent, or if a patient files a medical malpractice claim against his physician, the client would waive the attorney-client privilege and the doctor-patient privilege respectively to the extent that the lawyer or doctor could use privileged information that is necessary to mount a defense.
For example, assume that, during a medical malpractice lawsuit, a doctor is accused of failing to prescribe a certain medication. The doctor’s defense is that the patient told her that should would not take that medicine if prescribed. The doctor can testify as to this conversation, even though it would be covered by doctor-patient privilege.
Under the Federal Rules, if a person discloses information in discovery that should have been protected, the person now seeking protection should notify any party who received the allegedly protected information that they are now seeking protection and the basis for that claim. Once a party is notified that he or she has possession of allegedly protected information, there are specific steps that the party must take.
First, the party must promptly sequester, return, or destroy the allegedly protected information and any copies of it. Second, the party must not disclose or use the allegedly protected information until the court resolves the issue of whether the information is in fact privileged. Third, if the party provided the allegedly protected information to any other source before receiving notice that it might be protected, the party must take reasonable steps to retrieve the information. The party in possession of the allegedly protected information also has the option of providing it to the court under seal, until the issue is resolved.
U.S. Government, Federal Rules of Civil Procedure 2017 Annotated, Rule 26(c)(1).
Black’s Law Dictionary (Seventh Edition 1999), Definition: protective order, p.1239. St. Paul, MN: West Group.
 FRCP 26(c)(1).
 Black’s, Definition: Cause 2., p. 213.
 FRCP 26(c)(1)(A)-(H).
 FRCP 26(c)(1).
 Black’s, Definition: good faith, p. 701.
 FRCP 26(c)(1).
 FRCP 26(c)(3); FRCP 37(a)(5)(A).
Black’s, Definition: attorney-client privilege, p. 1215.
 Crystal, N., and Wilcox, R., AnnotatedSouth Carolina Rules of Professional Conduct (2005 Edition), pp.73-78. Columbia, S.C.: South Carolina Bar, Continuing Legal Education Division; Bar Bri Multi state (2010 Edition), Evidence, VI. Testimonial Evidence, G. Testimonial Privileges, 3. Attorney-Client Privilege, pp. 54-57.
 Black’s, definition: priest-penitent privilege, pp. 1216-1217.
 Whittaker, Lennard K., Regent University Law Review,(2000-2001), The Priest-Penitent Privilege: Its Constitutionality and Doctrine, Vol. 13:145, p. 49-50. Retrieved from http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v13n1/13RegentULRev145.pdf ; Barbri, Evidence, p. 60.
 Black’s, Definition: doctor-patient privilege, p. 1216.
Barbri, Evidence, VI. Testimonial Evidence, G. Testimonial Privileges, 4.Physician-Patient Privilege, pp. 57-58.
 Black’s, definition of marital privilege, p. 1216.
 Barbri, Evidence, pp. 52-61, p. 58.
 Id. At p. 60.
Black’s: definition of work-product and work-produce rule, p. 1600-1601
 FRCP 26(b)(3).
 FRCP 26(b)(5).
 Black’s, Definition: waiver, p. 1574.
 Barbri, Evidence, VI. Testimonial Evidence, G. Testimonial Privileges, 2.General Considerations, d. Waiver, p. 53.
 Crystal and Wilcox, pp. 76-78.
 Barbri, Evidence, VI. Testimonial Evidence, G. Testimonial Privileges, 2.General Considerations, e. eavesdroppers, p. 53-54.
 Crystal and Wilcox at 77.
 FRCP 26(b)(5).