Also known as: privileged communications · confidential communication · protected communication
Written by attorneys · grounded in primary & secondary sources — see below
A communication protected from compelled disclosure because it occurs within a confidential relationship such as marriage or attorney and client. The protection applies only when the parties reasonably rely on the intimacy or professional nature of the relationship. The privilege may survive the end of the relationship and can be asserted by either party to prevent testimony or production.
Portia Price and her husband Paul discuss cash payments received from a suspected trafficker while alone in their bedroom. Agents later seek to compel Portia to testify about the conversation in Paul's criminal trial. Because the exchange occurred in confidence during the marriage, Portia may refuse to disclose it and may prevent others from doing so even after divorce proceedings begin.
Pearl Porter approaches attorney Patrick Phan the day after a homicide to discuss possible representation. During the meeting she describes her involvement in the events. The conversation is later offered against her at trial. Because the statements were made with a view to retaining counsel, the court excludes them as privileged.
Select any source to read its text and confirm it supports the definition.
Pilar Pena, an employee of Phoenix Technologies, sends an email to in-house counsel describing facts relevant to a regulatory inquiry. The email is prepared at the direction of counsel to assist in providing legal advice. When a subpoena later reaches the company, Phoenix asserts the privilege over the email. The court upholds the claim because the communication was made for the purpose of obtaining legal advice.
Preston Pratt, a journalist, receives information from a confidential informant about criminal activity. Prosecutors subpoena Pratt to reveal the source at a grand jury proceeding. Pratt asserts a privilege to protect the communication. The court holds that no such privilege exists and orders disclosure.
Paul Peterson tells his therapist during a confidential session that he intends to harm a specific individual. The therapist later faces a claim for failing to warn the potential victim. The court recognizes that the psychotherapist-patient privilege ordinarily protects the communication but finds an exception when disclosure is necessary to prevent imminent harm.
Patrick Phan, counsel for Pioneer Energy, directs an investigator to interview witnesses after a fire at a company warehouse. The resulting memoranda are prepared in anticipation of coverage litigation. When the opposing party seeks the memoranda in discovery, the court denies production absent a showing of substantial need and undue hardship.
Yes. The privilege protects confidential communications made during the marriage even after the marriage ends. Either spouse may assert it to block disclosure.
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The withholding party must expressly claim the privilege and describe the nature of each withheld item sufficiently for the requesting party to assess the claim without revealing protected content.
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The privilege protects communications made in the course of diagnosis or treatment even when they include factual background. The protection does not turn on whether the statements are emotional or factual.
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Disclosure is inadvertent when the holder did not intend to reveal the specific protected communication. Courts examine the actor's subjective intent and the surrounding circumstances of the transmission.
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…approach: "Keeping in mind that the question is, Is it the corporation which is seeking the lawyer's advice when the asserted privileged communication is made?, the most satisfactory solution, I think, is that if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial…