Source and Choice of Privilege Law in Federal Courts: Part I

August 24, 2022

Lawyers dealing with attorney-client privilege questions obviously must assess what privilege law applies. Federal courts understandably apply federal privilege common law (essentially garden-variety principles) in federal question cases. Federal courts sitting in diversity should apply their host jurisdiction's choice of law rule in selecting the appropriate privilege law – although many courts seems to reflexively apply their host state's privilege law without a choice of law analysis.

Federal courts applying a state's privilege law must then locate it. In Greco v. Ahern, the court first properly acknowledged that "[i]n diversity actions . . . questions of privilege are controlled by state law." Case No. 21cv155-RBM (MSB), 2022 U.S. Dist. LEXIS 103338, at *12 (S.D. Cal. June 8, 2022). The court next noted that in California, "evidentiary privileges, including the attorney-client privilege, are governed by statute." Id. at *12-13. But from there, the court's analysis became complicated – recognizing an "at issue" exception not found in the statute. The court quoted an earlier California state court case explaining that "the [California] Code does not bar the courts from creating by decisional law new exceptions to various privileges." Id. at *15 (citation omitted).

Lawyers searching for the applicable attorney-client privilege law must sometimes look in the nooks and crannies of common law even in states purporting to recognize their attorney-privilege solely in statutes. Next week's Privilege Point will address a decision decided one day earlier – involving an even more convoluted analysis. 

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