TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 501. Privileges
General Duty to Give Evidence. A privilege is an exception to the general duty of a witness to offer evidence. Every person from whom evidence is sought owes the court the duty to appear, to be sworn, to answer, and to produce, and is relieved of that duty only so far as a privilege recognized by Rule 502 relieves the person.
Interpretation of Privileges. Testimonial privileges are exceptions to the general duty imposed on all people to testify, and therefore must be strictly construed. In criminal cases, even statutory privileges may be pierced when necessary to preserve a defendant’s constitutional rights, including the right to be confronted with the witnesses and to call for evidence in the defendant’s favor secured by Const. art. I, § 6.
Temporary Assertion of Privilege. In the case of a privilege that is not self-executing, it may be appropriate for the proponent of the privilege to temporarily assert the privilege pending notice to the party which holds the privilege. A person who asserts a privilege on behalf of an absent holder shall state that fact and shall give notice to the holder without delay. The court may fix a period, stated in hours, within which the holder shall appear and assert or abandon the privilege, and may treat a failure to respond within that period as an abandonment for the purposes of the proceeding then before it.
Confidentiality Versus Privilege. A duty of confidentiality obligates one, such as a professional, to keep certain information, often about a client or patient, confidential. In some circumstances, when a provider breaches a duty of confidentiality, the absence of an accompanying evidentiary privilege may permit a party in litigation to gain access to the information or to offer it in evidence. A duty of confidentiality imposed by a rule of professional conduct published under 3 R. Stat. §§ 151.003 or 151.203, by a regulation, by a contract, or by a term of service of a platform is not a privilege, confers no right to refuse to answer or to produce, and is not a ground of objection under Rule 103. Its breach is a matter for discipline and not a matter for exclusion.
Who May Assert. A privilege may be asserted only by the holder of the privilege, by a person the holder has authorized to assert it, or by a person whom these rules presume to have that authority. A party may not assert a privilege belonging to another, and may not claim error under Rule 103 in the admission of evidence over a privilege the party does not hold, except that a defendant in a criminal case may claim error where the ruling deprived the defendant of a right secured by Const. art. I, § 6.
Time of Assertion. A privilege shall be asserted at the first moment at which the person asserting it knows or reasonably should know that privileged matter is sought. In particular:
As to testimony, the privilege shall be asserted before the answer is given, and a witness who answers without asserting it may not thereafter strike the answer on the ground of privilege;
As to a document, an item of electronically stored information, or a tangible thing sought in discovery, the privilege shall be asserted in the response and logged as Rid. R. Civ. P. 19(6) requires;
As to a subpoena, the privilege shall be asserted by a motion to quash or to modify made within the period allowed by Rid. R. Civ. P. 32 or Rid. R. Crim. P. 17; and
As to material a party intends to offer at trial, an objection on the ground of privilege should be made by motion in limine as Rule 103(f) provides.
A failure to assert within the time this subdivision fixes is governed by Rule 509.
Manner of Assertion; Particularity.
An assertion of privilege shall be express. Silence, an incomplete answer, a general objection, and a reservation of rights are not assertions of privilege.
The person asserting shall identify the privilege claimed by the rule, statute, or constitutional provision that recognizes it, shall identify the holder by username or, where the holder is an entity, by name, and shall state the ground of the claim.
Where the assertion is made as to a document, a message, or an item of electronically stored information, the person asserting shall describe the item in a manner that, without revealing the matter itself privileged, enables the court and the other parties to assess the claim. The description shall state the date and time of the item in Coordinated Universal Time, its type and the channel or platform on which it was made or resides, the username of its author and of each recipient, the privilege asserted, and the request, question, or subpoena to which it responds.
A blanket assertion, an assertion by category alone, and an assertion that does not identify the items withheld are insufficient. The court shall overrule an insufficient assertion, and may allow a single opportunity to cure it upon such terms as are just.
A privilege log served under Rid. R. Civ. P. 19(6)(a) satisfies this subdivision as to the items it describes.
Burden. The person asserting a privilege bears the burden of establishing every element of it, including the existence of the relationship on which it rests, the confidentiality of the matter, and the absence of waiver. The burden is carried by a preponderance of the evidence. A party asserting that a privilege has been waived, or that an exception applies, bears the burden as to the waiver or the exception. The court decides the existence of a privilege as a preliminary question under Rule 104(a), and in so deciding is bound by the law of privilege.
In Camera Review.
When Available. The court may examine the matter claimed to be privileged, outside the presence of the fact finder and of the parties, where the assertion cannot be resolved upon the description required by Rule 501(g) and the examination is necessary to decide the claim.
Threshold Showing. A party seeking in camera review shall make a showing, upon evidence not itself privileged, sufficient to support a reasonable belief that the review may reveal that the matter is not privileged or that an exception applies. Where the crime-fraud exception is invoked, Rule 503(f) governs the showing.
Manner. In camera review shall be conducted in the manner the presiding judge directs. The judge may direct that the matter be presented in a communication channel restricted to the judge and the person asserting the privilege, by direct message to the judge, or by inspection in the presence of the judge alone. The judge shall record in the proceeding communications that the review occurred, the items reviewed by their description under Rule 501(g)(3), and the ruling.
Presence of the Opposing Party. No party opposing the claim of privilege shall be present at, or receive the material examined during, an in camera review, except upon the consent of the holder.
Limits. The court shall examine no more of the matter than is necessary to decide the claim, and shall disclose in its findings no more of the matter than is necessary to explain the ruling.
No Sealing; Protection by Withholding and by Order. The electronic filing system provides no document-level sealing and no redaction of any document, and confidentiality attaches to a matter by its case type and by nothing else, as Rid. R. Civ. P. 5.4(9) declares. It follows, and is hereby declared, that:
Privileged matter is protected by not being transmitted to the electronic filing system, and by an order binding persons, and by no other means. There is no protection of a privileged document by sealing, because the capacity to seal a document does not exist.
No party shall tender privileged matter to the electronic filing system, whether in support of a claim of privilege, in opposition to one, for in camera review, or for any other purpose. Matter necessary to the decision of a claim of privilege shall be presented under Rule 501(i)(3) and Rid. R. Civ. P. 5.6(8), without being filed.
No motion shall be made and no order shall issue to seal, redact, remove, restrict, withdraw, or expunge a document that has been transmitted to the electronic filing system and accepted. A document once accepted is in the record permanently, and Rid. R. Civ. P. 5.3(9) forbids its alteration.
Where privileged matter has been filed and accepted, the court may order each person subject to its jurisdiction not to use, disclose, republish, or rely upon that matter, may exclude it from evidence, and may enforce the order by contempt under Rid. R. Civ. P. 53 or Rid. R. Crim. P. 43. Such an order operates upon persons and upon no document, and does not remove the matter from the record.
A protective order entered under Rid. R. Civ. P. 19(7) is an order in personam and is governed by Rid. R. Civ. P. 5.6(7).
Preservation of Matter Examined in Camera. Matter examined in camera shall be preserved by the clerk apart from the electronic filing system, in such form as the clerk is able to keep it, together with the court’s written determination, and shall be transmitted to the Supreme Court upon an appeal in which the ruling is assigned as error. Where a statute requires that such a record be sealed, the requirement is satisfied by preservation under this subdivision or by the conduct of the proceeding as an ex parte matter under Rid. R. Civ. P. 5.4, the documents of which the electronic filing system withholds from the public docket by reason of the type of the matter.
Ruling; the Record. The court shall rule upon each item as to which a privilege is asserted and shall state the ruling and its ground in the proceeding communications. A single ruling upon an undifferentiated body of matter is insufficient where the items differ in kind, in author, or in subject. The ruling of the court upon a claim of privilege is a ruling on evidence within Rule 103.
Order Compelling; Consequences of an Unjustified Assertion. Where the court overrules an assertion of privilege, it shall order the witness to answer or the person to produce, and shall fix the time for compliance in hours. Where the assertion was not substantially justified, or where the person persists after the assertion is overruled, the court may:
Strike the direct testimony of a witness who refuses to answer on cross-examination, and strike the whole of the testimony where the refusal prevents a fair test of it;
Preclude the person asserting from offering evidence upon the subject matter withheld;
Draw an adverse inference against a party who withheld, in a civil action, upon the matter withheld, subject to Rule 505(g) where the privilege asserted is the privilege against self-incrimination;
Deem the matter withheld to be established against the party who withheld it, or strike a claim or defense to which it relates;
Hold the person in contempt under Rid. R. Civ. P. 53 or Rid. R. Crim. P. 43, and, as to a witness in a criminal proceeding, proceed under 6 R. Stat. § 131.302;
Award the reasonable expenses, including attorney’s fees, caused by the unjustified assertion, and impose a sanction under Rid. R. Civ. P. 26.3 or Rid. R. Crim. P. 48; and
Hold the privilege waived as to the items not properly asserted or not properly logged, as Rid. R. Civ. P. 19(6)(a) provides.
The court shall impose the least severe measure sufficient to remedy the prejudice, as Rule 103(g) requires.
Assertion Before the Fact Finder. Where a jury sits, an assertion of privilege shall be made and ruled upon outside the presence of the jury so far as is practicable, as Rule 104(c) requires. Neither party shall examine a witness before the fact finder for the purpose of eliciting an assertion of privilege, and no party shall comment upon an assertion except as Rule 501(m)(3) and Rule 505(g) permit.
Review. A ruling upon a claim of privilege is reviewed upon appeal from the judgment. Interlocutory review is available only as the Ridgeway Rules of the Supreme Court and, in a criminal case, Rid. R. Crim. P. 15 provide. A person who is not a party and who is held in contempt for refusing to comply with an order overruling a claim of privilege may seek review as those rules provide.