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
905.03(4)(e)
(e)
Joint clients. As to a communication relevant to a matter of common interest between 2 or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
905.03(5)(a)(a)
Effect of inadvertent disclosure. A disclosure of a communication covered by the privilege, regardless of where the disclosure occurs, does not operate as a forfeiture if all of the following apply:
905.03(5)(a)2.
2. The holder of the privilege or protection took reasonable steps to prevent disclosure.
905.03(5)(a)3.
3. The holder promptly took reasonable steps to rectify the error, including, if applicable, following the procedures in s.
804.01 (7).
905.03(5)(b)
(b)
Scope of forfeiture. A disclosure that constitutes a forfeiture under par.
(a) extends to an undisclosed communication only if all of the following apply:
905.03(5)(b)2.
2. The disclosed and undisclosed communications concern the same subject matter.
905.03(5)(b)3.
3. The disclosed and undisclosed communications ought in fairness to be considered together.
905.03 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R111 (1973);
1991 a. 32; Sup. Ct. Order No.
12-03, 2012 WI 114, 344 Wis. 2d xxi;
2013 a. 151 s.
28.
905.03 Note
Judicial Council Note, 2012: Sup. Ct. Order No.
12-03 states that “the Judicial Council Notes to Wis. Stat. § 804.01 (2) (c), 804.01 (7), 805.07 (2) (d), and 905.03 (5) are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
905.03 Note
Attorneys and those who work with them owe clients and their confidences the utmost respect. Preserving confidences is one of the profession's highest duties. Arguably, strict rules about the consequences of disclosing confidences, even inadvertently, may serve to promote greater care in dealing with privileged information. However, precaution comes at a price. In the digital era, when information is stored, exchanged and produced in considerably greater volumes and in different formats than in earlier eras, thorough preproduction privilege review often can be prohibitively expensive. Most clients seek a balanced approach.
905.03 Note
The various approaches available are discussed in the Advisory Committee Note and in Harold Sampson Children's Trust v. Linda Gale Sampson 1979 Trust,
2004 WI 57, ¶¶28-32, nn.15-17,
271 Wis. 2d 610. Sub. (5) represents an “intermediate" or “middle ground" approach, which is also an approach taken in a majority of jurisdictions. Clients and lawyers are free to negotiate more stringent precautions when circumstances warrant.
905.03 Note
Sub. (5) is not intended to have the effect of overruling any holding in Sampson. Sampson holds that a lawyer's deliberate disclosure, without the consent or knowledge of the client, does not waive the lawyer-client privilege. Neither subpart of sub. (5) alters this rule. Sub. (5)(a) shields certain inadvertent disclosures but does not disturb existing law regarding deliberate disclosures. Deliberate disclosures might come into play under sub. (5)(b), which provides that, when a disclosure is not inadvertent, a privilege forfeiture under sub. (5)(a) may extend to undisclosed communications and information as well. However, such an extension ensues only when fairness warrants. Fairness does not warrant the surrender of additional privileged communications and information if the initial disclosure is neutralized by the Sampson rule.
905.03 Note
In judging whether the holder of the privilege or protection took reasonable steps to prevent disclosure or to rectify the error, it is appropriate to consider the non-dispositive factors discussed in the Advisory Committee Note: (1) the reasonableness of precautions taken, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of disclosure, (5) the number of documents to be reviewed, (6) the time constraints for production, (7) whether reliable software tools were used to screen documents before production, (8) whether an efficient records management system was in place before litigation; and (9) any overriding issue of fairness.
905.03 Note
Measuring the time taken to rectify an inadvertent disclosure should commence when the producing party first learns, or, with reasonable care, should have learned that a disclosure of protected information was made, rather than when the documents were produced. This standard encourages respect for the privilege without greatly increasing the cost of protecting the privilege.
905.03 Note
In judging the fourth factor, which requires a court to determine the quantity of inadvertently produced documents, it is appropriate to consider, among other things, the number of documents produced and the percentage of privileged documents produced compared to the total production.
905.03 Note
In assessing whether the software tools used to screen documents before production were reliable, it is appropriate, given current technology, to consider whether the producing party designed a search that would distinguish privileged documents from others to be produced and conducted assurance testing before production through methods commonly available and accepted at the time of the review and production.
905.03 Note
Sub. (5) employs a distinction drawn lately between the terms “waiver" and “forfeiture." See State v. Ndina,
2009 WI 21, ¶¶28-31,
315 Wis. 2d 653.
905.03 Note
Out of respect for principles of federalism and comity with other jurisdictions, sub. (5) does not conclusively resolve whether privileged communications inadvertently disclosed in proceedings in other jurisdictions may be used in Wisconsin proceedings; nor whether privileged communications inadvertently disclosed in Wisconsin proceedings may be used in proceedings in other jurisdictions. Sub. (5) states that it applies “regardless of where the disclosure occurs," but to the extent that the law of another jurisdiction controls the question, it is not trumped by sub. (5). The prospect for actual conflicts is minimized because sub. (5) is the same or similar to the rule applied in the majority of jurisdictions that have addressed this issue. If conflicts do arise, for example, because a rule dictates that a disclosure in a jurisdiction other than Wisconsin should be treated as a forfeiture in Wisconsin, or that a disclosure in Wisconsin should be treated as a forfeiture in a jurisdiction other than Wisconsin, a court should consider a choice-of-law analysis. See Beloit Liquidating Trust v. Grade,
2004 WI 39, ¶¶24-25,
270 Wis. 2d 356.
905.03 Note
The language of sub. (5) also differs from the language of Rule 502 in a way that should not be considered material. Sub. (5) applies to a privileged “communication." Rule 502 applies to a privileged “communication or information." The reason for the difference is that sub. (5) is grafted onto sub. (2), which states the general rule regarding the lawyer-client privilege in terms of “communications" between lawyers and clients, not “communications and information." Sub. (5) follows suit. This different language is not intended to alter the scope of the lawyer-client privilege or to provide any less protection against inadvertent disclosure of privileged information than is provided by Rule 502.
905.03 Note
Sub. (5) is modeled on subsections (a) and (b) of Fed. R. Evid. 502. The following excerpts from the Committee Note of the federal Advisory Committee on Evidence Rules (Revised 11/28/2007) and the Statement of Congressional Intent regarding Rule 502 are instructive, though not binding, in understanding the scope and purposes of those portions of Rule 502 that are borrowed here:
905.03 Note
905.03 Note
This new [federal] rule has two major purposes:
905.03 Note
1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product — specifically those disputes involving inadvertent disclosure and subject matter waiver.
905.03 Note
2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005) (electronic discovery may encompass “millions of documents" and to insist upon “record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation").
905.03 Note
The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the court's order will be enforceable. Moreover, if a federal court's confidentiality order is not enforceable in a state court then the burdensome costs of privilege review and retention are unlikely to be reduced.
905.03 Note
. . .
905.03 Note
Subdivision (a). The rule provides that a voluntary disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver. See Rule 502(b). The rule rejects the result in In re Sealed Case,
877 F.2d 976 (D.C. Cir. 1989), which held that inadvertent disclosure of documents during discovery automatically constituted a subject matter waiver.
905.03 Note
The language concerning subject matter waiver — “ought in fairness" — is taken from Rule 106, because the animating principle is the same. Under both Rules, a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation.
905.03 Note
To assure protection and predictability, the rule provides that if a disclosure is made at the federal level, the federal rule on subject matter waiver governs subsequent state court determinations on the scope of the waiver by that disclosure.
905.03 Note
Subdivision (b). Courts are in conflict over whether an inadvertent disclosure of a communication or information protected as privileged or work product constitutes a waiver. A few courts find that a disclosure must be intentional to be a waiver. Most courts find a waiver only if the disclosing party acted carelessly in disclosing the communication or information and failed to request its return in a timely manner. And a few courts hold that any inadvertent disclosure of a communication or information protected under the attorney-client privilege or as work product constitutes a waiver without regard to the protections taken to avoid such a disclosure. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005), for a discussion of this case law.
905.03 Note
The rule opts for the middle ground: inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver.
905.03 Note
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.
905.03 Note
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.
905.03 Note
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.
905.03 Note
STATEMENT OF CONGRESSIONAL INTENT REGARDING RULE 502 OF THE FEDERAL RULES OF EVIDENCE
905.03 Note
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.
905.03 Note
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.
905.03 Note
Some of these questions are addressed more specifically below, in order to help further avoid uncertainty in the interpretation and application of the rule.
905.03 Note
Subdivision (a) — Disclosure vs. Use
905.03 Note
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.
905.03 Note
Subdivision (b) — Fairness Considerations
905.03 Note
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.
905.03 Note
905.03 Annotation
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 (1975).
905.03 Annotation
There is not a general exception to the lawyer-client privilege in legal malpractice cases. Discussing the extent of the privilege. Dyson v. Hempe,
140 Wis. 2d 792,
413 N.W.2d 379 (Ct. App. 1987).
905.03 Annotation
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).
905.03 Annotation
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.
905.03 Annotation
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.
905.03 Annotation
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.
905.03 Annotation
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.
905.03 Annotation
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 third-party, the victim, and was not confidential. Estrada v. State,
228 Wis. 2d 459,
596 N.W.2d 496 (Ct. App. 1999),
98-3055.
905.03 Annotation
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, Inc.,
2002 WI 28,
251 Wis. 2d 68,
640 N.W.2d 788,
00-1797.
905.03 Annotation
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, Inc.,
2002 WI 28,
251 Wis. 2d 68,
640 N.W.2d 788,
00-1797.
905.03 Annotation
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, Inc.,
2002 WI 28,
251 Wis. 2d 68,
640 N.W.2d 788,
00-1797.
905.03 Annotation
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,
01-0263.
905.03 Annotation
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 Children's Trust v. Linda Gale Sampson 1979 Trust,
2004 WI 57,
271 Wis. 2d 610,
679 N.W.2d 794,
02-1515.
905.03 Annotation
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 the defendant cannot effectively communicate with the defendant's 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,
10-1090.
905.03 Annotation
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 Ass'n,
2014 WI App 77,
355 Wis. 2d 487,
851 N.W.2d 845,
13-1585.
905.03 Annotation
Attorney-Client Privilege in Wisconsin. Stover & Koesterer. 59 MLR 227 (1976).
905.03 Annotation
Attorney-Client Privilege: Wisconsin's Approach to the Exceptions. Kingsland. 72 MLR 582 (1989).
905.03 Annotation
Attorney-Client Privilege and the Kovel Doctrine: Should Wisconsin Extend the Privilege to Communications with Third-Party Consultants? Lopez. 102 MLR 605 (2018).
905.04
905.04
Privilege between certain health-care providers and patients. 905.04(1)(a)
(a) “Chiropractor" means a person licensed under s.
446.02, or a person reasonably believed by the patient to be a chiropractor.
905.04(1)(b)
(b) 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, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.
905.04(1)(bm)
(bm) “Marriage and family therapist" means an individual who is licensed as a marriage and family therapist under subch.
I of ch. 457 or an individual reasonably believed by the patient to be a marriage and family therapist.
905.04(1)(br)
(br) “Naturopathic doctor" means a naturopathic doctor, as defined in s.
990.01 (22m), or an individual reasonably believed by the patient to be a naturopathic doctor.
905.04(1)(c)
(c) “Patient" means an individual, couple, family or group of individuals who consults with or is examined or interviewed by a physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(1)(d)
(d) “Physician" means a person as defined in s.
990.01 (28), or reasonably believed by the patient so to be.
905.04(1)(dg)
(dg) “Podiatrist" means a person licensed under s.
448.63 or a person reasonably believed by the patient to be a podiatrist.
905.04(1)(dm)
(dm) “Professional counselor" means an individual who is licensed as a professional counselor under subch.
I of ch. 457, an individual who is exercising the privilege to practice, as defined in s.
457.50 (2) (s), in this state, or an individual reasonably believed by the patient to be a professional counselor.
905.04(1)(e)
(e) “Psychologist" means a psychologist, as defined in s.
990.01 (31m), or a person reasonably believed by the patient to be a psychologist.
905.04(1)(f)
(f) “Registered nurse" means a registered nurse who is licensed under s.
441.06 or who holds a multistate license, as defined in s.
441.51 (2) (h), issued in a party state, as defined in s.
441.51 (2) (k), or a person reasonably believed by the patient to be a registered nurse.
905.04(1)(g)
(g) “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 subch.
I of 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.
905.04(2)
(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 naturopathic doctor, 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, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(3)
(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, naturopathic doctor, 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.
905.04(4)(a)(a)
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.
905.04(4)(am)
(am)
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.
905.04(4)(b)
(b)
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.
905.04(4)(c)
(c)
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.
905.04(4)(d)
(d)
Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.
