Cases such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D. N.Y. 1985) and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985), set out a multi-factor test for determining whether inadvertent disclosure is a waiver. The stated factors (none of which is dispositive) are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness. The rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors. Other considerations bearing on the reasonableness of a producing party's efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken “reasonable steps" to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant.
The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.
The rule applies to inadvertent disclosures made to a federal office or agency, including but not limited to an office or agency that is acting in the course of its regulatory, investigative or enforcement authority. The consequences of waiver, and the concomitant costs of pre-production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation.
STATEMENT OF CONGRESSIONAL INTENT REGARDING RULE 502 OF THE FEDERAL RULES OF EVIDENCE
During consideration of this rule in Congress, a number of questions were raised about the scope and contours of the effect of the proposed rule on current law regarding attorney-client privilege and work-product protection. These questions were ultimately answered satisfactorily, without need to revise the text of the rule as submitted to Congress by the Judicial Conference.
In general, these questions are answered by keeping in mind the limited though important purpose and focus of the rule. The rule addresses only the effect of disclosure, under specified circumstances, of a communication that is otherwise protected by attorney-client privilege, or of information that is protected by work-product protection, on whether the disclosure itself operates as a waiver of the privilege or protection for purposes of admissibility of evidence in a federal or state judicial or administrative proceeding. The rule does not alter the substantive law regarding attorney-client privilege or work-product protection in any other respect, including the burden on the party invoking the privilege (or protection) to prove that the particular information (or communication) qualifies for it. And it is not intended to alter the rules and practices governing use of information outside this evidentiary context.
Some of these questions are addressed more specifically below, in order to help further avoid uncertainty in the interpretation and application of the rule.
Subdivision (a) — Disclosure vs. Use
This subdivision does not alter the substantive law regarding when a party's strategic use in litigation of otherwise privileged information obliges that party to waive the privilege regarding other information concerning the same subject matter, so that the information being used can be fairly considered in context. One situation in which this issue arises, the assertion as a defense in patent-infringement litigation that a party was relying on advice of counsel, is discussed elsewhere in this Note. In this and similar situations, under subdivision (a)(1) the party using an attorney-client communication to its advantage in the litigation has, in so doing, intentionally waived the privilege as to other communications concerning the same subject matter, regardless of the circumstances in which the communication being so used was initially disclosed.
Subdivision (b) — Fairness Considerations
The standard set forth in this subdivision for determining whether a disclosure operates as a waiver of the privilege or protection is, as explained elsewhere in this Note, the majority rule in the federal courts. The majority rule has simply been distilled here into a standard designed to be predictable in its application. This distillation is not intended to foreclose notions of fairness from continuing to inform application of the standard in all aspects as appropriate in particular cases — for example, as to whether steps taken to rectify an erroneous inadvertent disclosure were sufficiently prompt under subdivision (b)(3) where the receiving party has relied on the information disclosed.
That there was a communication from a client to an attorney is insufficient to find the communication is privileged. Jax v. Jax, 73 Wis. 2d 572
, 243 N.W.2d 831
There is not a general exception to the lawyer-client privilege in legal malpractice cases. The extent of the privilege is discussed. Dyson v. Hempe, 140 Wis. 2d 792
, 413 N.W.2d 379
(Ct. App. 1987).
When a defendant alleges ineffective assistance of counsel, the lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the allegation. State v. Flores, 170 Wis. 2d 272
, 488 N.W.2d 116
(Ct. App. 1992).
A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work-product privileges and does not allow other parties to the litigation discovery of those files. Borgwardt v. Redlin, 196 Wis. 2d 342
, 538 N.W.2d 581
(Ct. App. 1995), 94-2701
Waiver of attorney-client privilege is not limited to direct attacks on attorney performance. An attempt to withdraw a plea on the grounds that it was not knowingly made raised the issue of attorney performance and resulted in a waiver of the attorney-client privilege. State v. Simpson, 200 Wis. 2d 798
, 548 N.W.2d 105
(Ct. App. 1996), 95-1129
Attorney-client privilege is not waived by a broadly worded insurance policy cooperation clause in a coverage dispute. There is not a common interest exception to the privilege when the attorney was not consulted in common by two clients. State v. Hydrite Chemical Co. 220 Wis. 2d 51
, 582 N.W.2d 411
(Ct. App. 1998), 96-1780
The attorney-client privilege is waived when the privilege holder attempts to prove a claim or defense by disclosing or describing an attorney-client communication. State v. Hydrite Chemical Co. 220 Wis. 2d 51
, 582 N.W.2d 411
(Ct. App. 1998), 96-1780
A videotaped interview of a crime victim conducted by the alleged perpetrator's spouse was not privileged as attorney communication because it was made in the presence of a 3rd-party, the victim, and was not confidential. Estrada v. State, 228 Wis. 2d 459
, 596 N.W.2d 496
(Ct. App. 1999), 98-3055
A former director cannot act on behalf of the client corporation and waive the lawyer-client privilege. Even though documents were created during the former director's tenure as a director, a former director is not entitled to documents in the corporate lawyer's files. Lane v. Sharp Packaging Systems, 2002 WI 28
, 251 Wis. 2d 68
, 640 N.W.2d 788
Billing records are communications from the attorney to the client, and producing those communications violates the lawyer-client privilege if production of the documents reveals the substance of lawyer-client communications. Lane v. Sharp Packaging Systems, 2002 WI 28
, 251 Wis. 2d 68
, 640 N.W.2d 788
The test for invoking the crime-fraud exception under sub. (4) (a) is whether there is reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme. If a prima facie case is established, an in camera review of the requested documents is required to determine if the exception applies. Lane v. Sharp Packaging Systems, 2002 WI 28
, 251 Wis. 2d 68
, 640 N.W.2d 788
Counsel's testimony on opinions, perceptions, and impressions of a former client's competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104
, 263 Wis. 2d 794
, 666 N.W.2d 859
A lawyer's voluntary production of documents in response to opposing counsel's discovery request does not constitute a waiver of the attorney-client privilege under this section when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client. The agency doctrine does not apply to waiver of attorney-client privilege as it relates to privileged documents. Harold Sampson Trust v. Linda Gale Sampson Trust, 2004 WI 57
, 271 Wis. 2d 610
, 679 N.W.2d 794
The defendant's lawyer-client privilege is waived to the extent that counsel must answer questions relevant to a charge of ineffective assistance. This application of the attorney-client privilege applies with equal force when a defendant in a criminal case claims that he or she cannot effectively communicate with his or her lawyer. Otherwise no court could assess whether there was a total lack of communication between them. State v. Boyd, 2011 WI App 25
, 331 Wis. 2d 697
, 797 N.W.2d 546
An association invoking attorney-client privilege is the client and has the exclusive authority to withhold privileged information from current individual directors. When a lawyer represents an organization, the organization is the client, not the organization's constituents. Fouts v. Breezy Point Condominium Association, 2014 WI App 77
, 355 Wis. 2d 487
, 851 N.W.2d 845
Attorney-client privilege in Wisconsin. Stover and Koesterer. 59 MLR 227.
Attorney-client privilege: Wisconsin's approach to exceptions. 72 MLR 582 (1989).
Physician-patient, registered nurse-patient, chiropractor-patient, psychologist-patient, social worker-patient, marriage and family therapist-patient, podiatrist-patient and professional counselor-patient privilege. 905.04(1)(a)
“Chiropractor" means a person licensed under s. 446.02
, or a person reasonably believed by the patient to be a chiropractor.
A communication or information is “confidential" if not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the consultation, examination, or interview, to persons reasonably necessary for the transmission of the communication or information, or to persons who are participating in the diagnosis and treatment under the direction of the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.
“Marriage and family therapist" means an individual who is licensed as a marriage and family therapist under ch. 457
or an individual reasonably believed by the patient to be a marriage and family therapist.
“Patient" means an individual, couple, family or group of individuals who consults with or is examined or interviewed by a physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
“Physician" means a person as defined in s. 990.01 (28)
, or reasonably believed by the patient so to be.
“Podiatrist" means a person licensed under s. 448.63
or a person reasonably believed by the patient to be a podiatrist.
“Professional counselor" means an individual who is licensed as a professional counselor under ch. 457
or an individual reasonably believed by the patient to be a professional counselor.
“Psychologist" means a licensed psychologist, as that term is defined in s. 455.01 (4)
, or a person reasonably believed by the patient to be a psychologist.
“Registered nurse" means a nurse who is licensed under s. 441.06
or licensed as a registered nurse in a party state, as defined in s. 441.50 (2) (j)
, or a person reasonably believed by the patient to be a registered nurse.
“Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under ch. 457
or an individual reasonably believed by the patient to be a social worker, advanced practice social worker, independent social worker, or clinical social worker.
(2) General rule of privilege.
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's podiatrist, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
(3) Who may claim the privilege.
The privilege may be claimed by the patient, by the patient's guardian or conservator, or by the personal representative of a deceased patient. The person who was the physician, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor may claim the privilege but only on behalf of the patient. The authority so to do is presumed in the absence of evidence to the contrary.
Proceedings for commitment, guardianship, protective services, or protective placement or for control, care, or treatment of a sexually violent person.
There is no privilege under this rule as to communications and information relevant to an issue in probable cause or final proceedings to commit the patient for mental illness under s. 51.20
, to appoint a guardian in this state, for court-ordered protective services or protective placement, for review of guardianship, protective services, or protective placement orders, or for control, care, or treatment of a sexually violent person under ch. 980
, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of commitment, guardianship, protective services, or protective placement or control, care, and treatment as a sexually violent person.
Proceedings for guardianship.
There is no privilege under this rule as to information contained in a statement concerning the mental condition of the patient furnished to the court by a physician or psychologist under s. 54.36 (1)
or s. 880.33 (1)
, 2003 stats.
Examination by order of judge.
If the judge orders an examination of the physical, mental or emotional condition of the patient, or evaluation of the patient for purposes of guardianship, protective services or protective placement, communications made and treatment records reviewed in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.
Condition an element of claim or defense.
There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.
There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.
Abused or neglected child or abused unborn child. 905.04(4)(e)2m.2m.
There is no privilege for information contained in a report of child abuse or neglect that is provided under s. 48.981 (3)
There is no privilege in situations where the examination of the expectant mother of an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.
Tests for intoxication.
There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in s. 340.01 (1v)
There is no privilege concerning testimony about the medical circumstances of a pregnancy or the condition and characteristics of a child in a proceeding to determine the paternity of that child under subch. IX of ch. 767
Reporting wounds and burn injuries.
There is no privilege regarding information contained in a report under s. 255.40
pertaining to a patient's name and type of wound or burn injury.
Providing services to court in juvenile matters.
There is no privilege regarding information obtained by an intake worker or dispositional staff in the provision of services under s. 48.067
. An intake worker or dispositional staff member may disclose information obtained while providing services under s. 48.067
only as provided in s. 48.78
and may disclose information obtained while providing services under s. 938.067
only as provided in s. 938.78
Sup. Ct. Order, 59 Wis. 2d R121; 1975 c. 393
; 1977 c. 61
; 1979 c. 32
s. 92 (1)
; 1979 c. 221
; 1983 a. 400
; 1987 a. 233
; Sup. Ct. Order, 151 Wis. 2d xxi (1989); 1991 a. 32
; 1993 a. 98
; 1995 a. 77
; 1997 a. 292
; 1999 a. 22
; 2001 a. 80
; 2005 a. 387
; 2005 a. 443
; 2007 a. 53
; 2009 a. 113
; 2013 a. 158
Sub. (4) (a) applies to proceedings to extend a commitment under the sex crimes act. State v. Hungerford, 84 Wis. 2d 236
, 267 N.W.2d 258
By entering a plea of not guilty by reason of mental disease or defect, the defendant lost the physician-patient privilege by virtue of sub. (4) (c) and the confidentiality of treatment records under s. 51.30 (4) (b) 4. State v. Taylor, 142 Wis. 2d 36
, 417 N.W.2d 192
(Ct. App. 1987).
A psychotherapist's duty to 3rd parties for dangerous patients' intentional behavior is discussed. Schuster v. Altenberg, 144 Wis. 2d 223
, 424 N.W.2d 159
A defendant did not have standing to complain that a physician's testimony violated a witness's physician-patient's privilege under this section; the defendant was not authorized to claim the privilege on the patient's behalf. State v. Echols, 152 Wis. 2d 725
, 449 N.W.2d 320
(Ct. App. 1989).
Under sub. (4) (g), the history of a pregnancy is discoverable. The court may permit discovery of the history as long as information regarding the mother's sexual relations outside of the conceptive period is eliminated. In re Paternity of J.S.P. 158 Wis. 2d 100
, 461 N.W.2d 794
(Ct. App. 1990).
Because under sub. (4) (f) there is no privilege for chemical tests for intoxication, the results of a test taken for diagnostic purposes are admissible in an OMVWI trial. City of Muskego v. Godec, 167 Wis. 2d 536
, 482 N.W.2d 79
A patient's mere presence in a physician's office is not within the ambit of this privilege. A defendant charged with trespass to a medical facility, s. 943.145, is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576
, 489 N.W.2d 678
(Ct. App. 1992).
To be entitled to an in camera inspection of privileged records, a criminal defendant must show that the sought after evidence is relevant and may be necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 Wis. 2d 600
, 499 N.W.2d 719
(Ct. App. 1993). See also State v. Lynch, 2015 WI App 2
, 359 Wis. 2d 482
, 859 N.W.2d 125
The patient's objectively reasonable expectations of confidentiality from the medical provider are the proper gauge of the privilege. State v. Locke, 177 Wis. 2d 590
, 502 N.W.2d 891
(Ct. App. 1993).
When a patient's medical condition is at issue the patient-client privilege gives way. Wikrent v. Toys “R" Us, 179 Wis. 2d 297
, 507 N.W.2d 130
(Ct. App. 1993).
Ex parte contacts between several treating physicians after the commencement of litigation did not violate this section. This section applies only to judicial proceedings and places restrictions on lawyers, not physicians. Limited ex parte contacts between defense counsel and plaintiff's physicians are permissible, but ex parte discovery is not. Steinberg v. Jensen, 194 Wis. 2d 439
, 534 N.W.2d 361
There is no general exception to privileged status for communications gathered from incarcerated persons. State v. Joseph P. 200 Wis. 2d 227
, 546 N.W.2d 494
(Ct. App. 1996), 95-2547
Both initial sex offender commitment and discharge hearings under ch. 980 are “proceedings for hospitalization" within the exception to the privilege under sub. (4) (a). State v. Zanelli, 212 Wis. 2d 358
, 569 N.W.2d 301
(Ct. App. 1997), 96-2159
A party may not challenge on appeal an in camera review of records conducted at his own request. State v. Darcy N.K. 218 Wis. 2d 640
, 581 N.W.2d 567
(Ct. App. 1998), 97-0458
This section does not regulate the conduct of physicians outside of a courtroom. Accordingly it does not give a patient the right to exclude others from a treatment area. State v. Thompson, 222 Wis. 2d 179
, 585 N.W.2d 905
(Ct. App. 1998), 97-2744
When a motion has been made seeking a minor victim's health care records, the state shall give notice to the victim and the victim's parents, providing a reasonable time to object to the disclosure. If the victim does not expressly consent to disclosure, the state shall not waive the materiality hearing under Schiffra.
Jessica J.L. v. State, 223 Wis. 2d 622
, 589 N.W.2d 660
(Ct. App. 1998), 97-1368
The psychotherapist-patient privilege does not automatically or absolutely foreclose the introduction of a therapeutic communication. When a therapist had reasonable cause to believe a patient was dangerous and that contacting police would prevent harm and facilitate the patient's hospitalization, the patient's statements fell within a dangerous patient exception to the privilege. State v. Agacki, 226 Wis. 2d 349
, 595 N.W.2d 31
(Ct. App. 1999), 97-3463
Under the Schiffra
test, an in camera
inspection of the victim's mental health records was allowed. The defendant established more than the mere possibility that the requested records might be necessary for a fair determination of guilt or innocence. State v. Walther, 2001 WI App 23
, 240 Wis. 2d 619
, 623 N.W.2d 205
Release of records containing information of previous assaultive behavior by a nursing home resident was not prohibited by the physician-patient privilege. A nursing home resident does not have a reasonable expectation of privacy in assaultive conduct. The information may be released by court order. Crawford v. Care Concepts, Inc. 2001 WI 45
, 243 Wis. 2d 119
, 625 N.W.2d 876
The preliminary showing for an in camera review of a victim's mental health records requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative of other evidence available to the defendant. The information will be “necessary to a determination of guilt or innocence" if it “tends to create a reasonable doubt that might not otherwise exist." State v. Green, 2002 WI 68
, 253 Wis. 2d 356
, 646 N.W.2d 298
The test set out in Shiffra
, pertaining to access to privileged mental health records applies to a defendant requesting confidential records during postconviction discovery and the defendant should be required to meet the preliminary Shiffra-Green
burden. State v. Robertson, 2003 WI App 84
, 349 Wis. 2d 349
, 661 N.W.2d 105
Communications with an unlicensed therapist were privileged because of the patient's reasonable expectation that they would be and because the unlicensed therapist worked under the direction of a physician. Johnson v. Rogers Memorial Hospital, Inc. 2005 WI 114
, 283 Wis. 2d 384
, 627 N.W.2d 890
The privilege under this section is not a principle of substantive law, but merely an evidentiary rule applicable at all stages of civil and criminal proceedings, except actual trial on the merits in homicide cases. 64 Atty. Gen. 82.
A person claiming a privilege in a communication with a person who was not a medical provider under sub. (1) (d) to (g) has the burden of establishing that he or she reasonably believed the person to be a medical provider. U.S. v. Schwenson, 942 F. Supp. 902
Domestic violence or sexual assault advocate-victim privilege. 905.045(1)(a)
“Abusive conduct" means abuse, as defined in s. 813.122 (1) (a)
, of a child, as defined in s. 813.122 (1) (b)
, interspousal battery, as described under s. 940.19
or 940.20 (1m)
, domestic abuse, as defined in s. 813.12 (1) (am)
, sexual exploitation by a therapist under s. 940.22
, sexual assault under s. 940.225
, human trafficking involving a commercial sex act under s. 940.302
, or child sexual abuse under s. 948.02
, or 948.05
A communication or information is “confidential" if not intended to be disclosed to 3rd persons other than persons present to further the interest of the person receiving counseling, assistance, or support services, persons reasonably necessary for the transmission of the communication or information, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, including family members of the person receiving counseling, assistance, or support services and members of any group of individuals with whom the person receives counseling, assistance, or support services.
“Victim" means an individual who has been the subject of abusive conduct or who alleges that he or she has been the subject of abusive conduct. It is immaterial that the abusive conduct has not been reported to any government agency.
“Victim advocate" means an individual who is an employee of or a volunteer for an organization the purpose of which is to provide counseling, assistance, or support services free of charge to a victim.