Subpoena Duces Tecum - Privileges

Privileges

Attorney–client privilege is generally recognized by the courts. Communications between lawyer and client are generally immune from subpoena. In other words, a lawyer cannot be compelled to testify in a trial unless the lawyer becomes, or appears to become, a party to the litigation. A similar situation exists with "work product", meaning written documents or computer records generated in preparation for a trial or hearing. This includes information such as potential questions that may be asked of witnesses, lists of possible witnesses, memoranda, notes, trial strategies, written briefs, or documents that may, or may not end up being used in the course of litigation. Usually, none of this can be the subject of a subpoena duces tecum. If a communication between lawyer and client is made in the presence of the third party, the privilege is not recognized to exist.

The federal courts will apply the common law rule of attorney–client privilege unless there is an intervening state law applying to the central issues of the matter. In those cases, the federal court uses the effective state law.

Physician-patient privilege is usually statutorily defined, and can vary from state to state. The usual rule is that medical records are immune from subpoena if the plaintiff has not alleged physical or mental injuries or damages. Once the plaintiff alleges physical or mental injuries proximately flowing from a potentially tortious act by the defendant, or in some other disability hearing, medical records can be subject to subpoena duces tecum. While witnesses may try to resist legal discovery by asking the judge to protect them from questioning or inspection of documents, the policy of the courts is in favor of full disclosure. It is the intent of the rules of procedure that pre-trial discovery take place without any intervention of a judge. So-called "fishing expeditions" (a massive and aimless call for all documents related to the litigation) are permissible under Federal Rule of Civil Procedure 26 (b) (1). This rule is repeated in many state's rules of procedure: "Parties may obtain discovery regarding any matter, not privileged, which is relevant...if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." The looseness of the definition of relevant evidence is generally construed to mean "liberal" production. The physician who is the party to an action does not own the records of patients he has treated. They are not privileged if the patient has waived confidentiality. Physicians must produce medical records under subpoena duces tecum.

Peer review records, and other hospital documents of quality control committee meetings are generally not subject to subpoena duces tecum, since these have statutory immunity. The theory is that the frankness of peer review would be chilled if these records could be routinely compelled.

Several United States Federal Circuit Courts have recognized a limited reporter's privilege. The United States Justice Department has a self-imposed limitation upon subpoena of reporters and their notes. This privilege is not universal, and is incomplete.

Internal memos from scientific and medical journals generated in peer reviewing articles for publication are generally immune from subpoena.

In some states (such as California), rape crisis counselors and domestic violence advocates hold a statutory privilege analogous to therapist-client privilege. (See, for example, 1035 Cal. Evidence Code for rape crisis advocates, and 1037.6 Cal. Evidence Code for domestic violence advocates). However, these privileges are not absolute, and may be overruled by a judge upon a showing that "the probative value of the information outweighs the effect of disclosure of the information on the victim, the counseling relationship, and the counseling services", or under a number of other limited circumstances. To respect and preserve the privacy of sensitive material contained in such reports, the judge may require the disclosure of confidential information to take place in camera.

So called "priest-penitent" privilege, which precludes forced testimony of confessions made to a priest, minister, or religious adviser are statutorily defined in the United States. They vary between states. In some cases, the privilege is confusing and ill-defined. In others, there is recognized stare decisis. (See: priest-penitent privilege, confessional privilege (United States), spousal privilege, executive privilege, reporters' privilege.)