Chapter 905

CHAPTER 905

EVIDENCE — PRIVILEGES

905.01   Privileges recognized only as provided.

905.015   Interpreters for persons with language difficulties, limited English proficiency, or hearing or speaking impairments.

905.02   Required reports privileged by statute.

905.03   Lawyer-client privilege.

905.04   Privilege between certain health-care providers and patients.

905.045   Domestic violence or sexual assault advocate-victim privilege.

905.05   Husband-wife and domestic partner privilege.

905.06   Communications to members of the clergy.

905.065   Honesty testing devices.

905.07   Political vote.

905.08   Trade secrets.

905.09   Law enforcement records.

905.095   Peer support and critical incident stress management services communications.

905.10   Identity of informer.

905.11   Waiver of privilege by voluntary disclosure.

905.12   Privileged matter disclosed under compulsion or without opportunity to claim privilege.

905.13   Comment upon or inference from claim of privilege; instruction.

905.14   Privilege in crime victim compensation proceedings.

905.15   Privilege in use of federal tax return information.

905.16   Communications to veteran mentors.

Ch. 905 Note NOTE: Extensive comments by the Judicial Council Committee and the Federal Advisory Committee are printed with chs. 901 to 911 in 59 Wis. 2d. The court did not adopt the comments but ordered them printed with the rules for information purposes.

905.01 905.01 Privileges recognized only as provided. Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:

905.01(1) (1) Refuse to be a witness; or

905.01(2) (2) Refuse to disclose any matter; or

905.01(3) (3) Refuse to produce any object or writing; or

905.01(4) (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

905.01 History History: Sup. Ct. Order, 59 Wis. 2d R1, R101 (1973).

905.01 Annotation This section precludes courts from recognizing common law privileges not contained in the statutes, or the U.S. or Wisconsin Constitutions. Privileges and confidentialities granted by statute are strictly interpreted. Davison v. St. Paul Fire & Marine Insurance Co., 75 Wis. 2d 190, 248 N.W.2d 433 (1977).

905.01 Annotation A defendant did not have standing to complain that a physician’s testimony violated the witness’s physician-patient privilege under s. 905.04; 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).

905.01 Annotation As s. 907.06 (1) prevents a court from compelling an expert to testify, it logically follows that a litigant should not be able to so compel an expert and a privilege to refuse to testify is implied. Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), 96-3356.

905.01 Annotation Under Alt, 224 Wis. 2d 72 (1999), a person asserting the privilege not to offer expert opinion testimony can be required to give that testimony only if: 1) there are compelling circumstances present; 2) there is a plan for reasonable compensation of the expert; and 3) the expert will not be required to do additional preparation for the testimony. An exact question requiring expert opinion testimony and a clear assertion of the privilege are required for a court to decide whether compelling circumstances exist. Alt does not apply to observations made by a person’s treating physician relating to the care or treatment provided to the patient. Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413, 02-1426.

905.01 Annotation The “inherent or implicit” language in this section is quite narrow in scope and was included by the supreme court to preserve a particular work product privilege already recognized at the time this language was added to the statute, while leaving other privileges to be provided for more expressly in other statutory provisions. Sands v. Whitnall School District, 2008 WI 89, 312 Wis. 2d 1, 754 N.W.2d 439, 05-1026.

905.01 Annotation Closed Session, Open Book: Sifting the Sands Case. Bach. Wis. Law. Oct. 2009.

905.015 905.015 Interpreters for persons with language difficulties, limited English proficiency, or hearing or speaking impairments.

905.015(1) (1) If an interpreter for a person with a language difficulty, limited English proficiency, as defined in s. 885.38 (1) (b), or a hearing or speaking impairment interprets as an aid to a communication which is privileged by statute, rules adopted by the supreme court, or the U.S. or state constitution, the interpreter may be prevented from disclosing the communication by any person who has a right to claim the privilege. The interpreter may claim the privilege but only on behalf of the person who has the right. The authority of the interpreter to do so is presumed in the absence of evidence to the contrary.

905.015(2) (2) In addition to the privilege under sub. (1), a person who is licensed as an interpreter under s. 440.032 (3) may not disclose any aspect of a confidential communication facilitated by the interpreter unless one of the following conditions applies:

905.015(2)(a) (a) All parties to the confidential communication consent to the disclosure.

905.015(2)(b) (b) A court determines that the disclosure is necessary for the proper administration of justice.

905.015 History History: 1979 c. 137; 1985 a. 266; 2001 a. 16; 2009 a. 360.

905.02 905.02 Required reports privileged by statute. A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if provided by law. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if provided by law. No privilege exists under this section in actions involving false swearing, fraudulent writing, fraud in the return or report, or other failure to comply with the law in question.

905.02 History History: Sup. Ct. Order, 59 Wis. 2d R1, R109 (1973).

905.02 Annotation This section applies only to privileges specifically and unequivocally provided by law against the disclosure of specific materials. Davison v. St. Paul Fire & Marine Insurance Co., 75 Wis. 2d 190, 248 N.W.2d 433 (1977).

905.03 905.03 Lawyer-client privilege.

905.03(1) (1) Definitions. As used in this section:

905.03(1)(a) (a) A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

905.03(1)(b) (b) A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

905.03(1)(c) (c) A “representative of the lawyer” is one employed to assist the lawyer in the rendition of professional legal services.

905.03(1)(d) (d) A communication is “confidential” if not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

905.03(2) (2) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: between the client or the client’s representative and the client’s lawyer or the lawyer’s representative; or between the client’s lawyer and the lawyer’s representative; or by the client or the client’s lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client.

905.03(2m) (2m) Privilege when client is a fiduciary. When a lawyer represents a client who is serving as a personal representative, trustee, trust protector, directing party, guardian, conservator, guardian ad litem, attorney in fact for financial matters, health care agent, or other fiduciary, the lawyer’s client is the person who is acting as a fiduciary, and not anyone to whom the client owes fiduciary or other duties, and communication between the lawyer and such a client is protected from disclosure to the same extent as if the client was not acting as a fiduciary. The privilege may be claimed by the client, or otherwise as provided in sub. (3), even against anyone to whom the client owes fiduciary or other duties.

905.03(3) (3) Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer’s authority to do so is presumed in the absence of evidence to the contrary.

905.03(4) (4) Exceptions. There is no privilege under this rule:

905.03(4)(a) (a) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

905.03(4)(b) (b) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

905.03(4)(c) (c) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the lawyer’s client or by the client to the client’s lawyer; or

905.03(4)(d) (d) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or