A new threat to plaintiffs' discovery rights?

Despite the U.S. Supreme Court's decision in Jaffee, federal courts will probably continue to adopt a skeptical attitude toward privilege claims.

Pre-trial discovery is "the center of gravity" in modern litigation.(1) Roughly 97 percent of all civil cases are resolved without ever reaching trial,(2) and the settlement terms depend largely on developments during pre-trial discovery.(3)

Discovery is especially important for plaintiff attorneys, since the plaintiff has the ultimate burden of proof for purposes of both summary judgment and trial and, in many cases, evidence the plaintiff needs is in the defendant's possession.

Fortunately for the plaintiff bar, discovery under the Federal Rules of Civil Procedure is broad. Rule 26 provides that a plaintiff may discover any matter, not privileged, that is relevant to the subject matter involved in the pending action. Both the Supreme Court(4) and the lower courts(5) have construed the rule liberally. As one federal district court noted, the threshold is "minimal" and any genuine doubts should be resolved "in favor of discovery."(6)

However, the plaintiff's right to discovery is not unlimited. As the text of Rule 26 states, a defendant may interpose privilege objections to a discovery request.

Suppose, for example, that a plaintiff files a personal injury action against a corporate defendant. The plaintiff's complaint alleges that the negligent driving of the defendant's employee A caused a collision, injuring the plaintiff. Earlier discovery establishes that as employee B was driving to work, she saw the accident and, shortly after, gave the defendant's attorney a witness statement. When the plaintiff moves for production of employee B's statement, the defense objects on the ground of the attorney-client privilege.

Many courts would characterize B as a mere "occurrence witness" and reject the privilege claim. Even though a superior might have ordered B to give the statement, it does not reflect knowledge B gained performing her employment duties. However, citing the draft Restatement of the Law Governing Lawyers prepared by the American Law Institute (ALI),(7) the defense urges the court to expand the scope of the corporate attorney-client privilege.

Or, assume that the plaintiff has brought a toxic tort action against a corporate defendant. Prior discovery reveals that the defendant conducted an internal investigation shortly after the toxic spill. The plaintiff moves for production of the report. The defendant invokes a privilege for self-critical analysis, arguing that although this is a novel evidentiary doctrine, the court should exercise its power under Federal Rule of Evidence 501 to recognize this privilege.(8)

On its face, Rule 501 purports to grant federal courts broad power over privilege doctrine.

Except as otherwise required by the Constitution

of the United States or provided by Act

of Congress or in rules prescribed by the

Supreme Court pursuant to statutory authority,

the privilege of a witness, person, government,

state, or political subdivision thereof

shall be governed by the principles of the

common law as they may be interpreted by

the courts of the United States in the light of

reason and experience.

Despite the breadth of this wording, until recently plaintiffs could be reasonably confident of victory in a discovery dispute once they demonstrated that the defense's privilege claim entailed creating a new privilege or extending an existing one. In a long line of cases, the Supreme Court had rejected requests that it recognize a new privilege.(9) In the celebrated Nixon case, the Court declared that testimonial privileges "are not lightly created nor expansively construed."(10) Given this, the defense would have an uphill battle persuading a federal court to extend attorney-client privilege or fashion a new self-critical privilege.

However, in 1996, over a vigorous dissent by Justice Antonin Scalia, the majority in Jaffee v. Redmond fashioned a federal psychotherapist privilege extending to social workers. The Supreme Court decreed the privilege absolute in character but subject to unspecified exceptions.(11) The decision came as a surprise.

The question is whether Jaffee signals a fundamental change in the federal courts' receptivity to privilege claims. If it does, its progeny could represent a major threat to plaintiffs' discovery rights. At first blush, Jaffee should give the plaintiffs' bar pause. However, the thesis of this article is that even with Jaffee as a benchmark, the federal courts will probably continue to adopt a skeptical attitude toward creating new privileges or expanding old ones.

The past

With great consistency, the Supreme Court has counseled caution in expanding privilege protection under Rule 501. In the late 1970s, the Court struck that cautionary note in Herbert v. Lando.(12) There, the plaintiff, a retired Army officer who had served in Vietnam, brought a defamation action against a television network and two of its employees. The defendants argued that the Court should create a new privilege for the thoughts, opinions, and conclusions of media employees participating in the editorial process.

The Court refused. It generalized that evidentiary privileges in litigation are not favored. Quoting the Nixon opinion, the Court emphasized that privileges are not lightly created or expansively construed because they derogate the search for truth. The Court noted that even prerogatives such as executive privilege that are rooted in the Constitution must yield to a demonstrated specific need for evidence.(13)

In 1980, the Court handed down two more decisions manifesting the same skepticism toward privilege claims. In Trammel v. United States, the Court reiterated that privileges "contravene the fundamental principle that `the public . . . has a right to every man's evidence.'"(14) Noting that public policy favors using all rational means to ascertain truth, the Court said even existing privileges should be strictly construed.

Consequently, the Court curtailed the scope of the antimarital privilege, allowing its assertion only when the witness spouse is unwilling to testify against the litigant spouse. Although tradition favored allowing the litigant spouse to claim the privilege, the Court concluded that "[t]he contemporary justification" for the privilege is insufficient to warrant "frustrat[ing] justice."(15)

That same year the Court decided United States v. Gillock.(16) Edgar Gillock, a Tennessee state senator, was indicted in federal court for accepting money to use his official influence to block an accused's extradition to Illinois. Analogizing to the U.S. Constitution Speech or Debate Clause, Gillock asked the Court to create a comparable privilege for state Legislators' acts.

The Court turned a deaf ear to the plea, pointing out that the draft Federal Rules did not include any such privilege. Nor was it permanently established in the common law.(17) Although the Court was willing to assume arguendo that the denial of a privilege might impact minimally on Gillock's exercise of legislative functions, it found that impact did not justify fashioning a privilege that could frustrate an official inquiry into the truth.(18)

In the mid 1980s, in United States v. Arthur Young & Co., the Court was again asked to recognize a new federal privilege.(19) The respondent, Arthur Young & Co., was a certified public accounting firm. During the investigation of one of the firm's clients, the IRS issued the firm an administrative summons. When the firm refused to comply, the IRS initiated an enforcement action. During the action, the firm urged the Court to recognize an accountant-client privilege, arguing that many states have legislation codifying this privilege.(20)

However, the Court refused to recognize even a qualified privilege akin to the conditional work-product doctrine. The Court reasoned that since the requested work papers were logically relevant to the inquiry, the government had a right to discover them.(21) The Court again warned that courts should be cautious in exercising their power under Rule 501.

In 1990, the Court sounded the same warning in University of Pennsylvania v. EEOC(22) After being denied tenure, a university professor filed a charge of race and sex discrimination against the university. In its investigation into the charge, the Equal Employment Opportunity Commission sought to inspect the professor's tenure-file documents, which were in the university's possession. When the university refused, the commission commenced an enforcement action. The university contended that the Court should recognize at least a qualified privilege for academic peer review.

The Court refused. Conceding that Rule 501 accords the federal courts a flexibility in developing rules of privilege, the Court asserted that it is disinclined to exercise its authority expansively. The Court noted the long-standing policy that existing privileges should be "strictly construed."(23)

The present

The Supreme Court decided Jaffee against the backdrop of the above line of authority. In Jaffee, a local police officer shot and killed a private citizen. The decedent's survivors brought a civil rights action against the municipality and the officer.

During discovery, the plaintiffs learned that after the shooting, the officer received counseling from a clinical social worker. The plaintiffs sought to discover the notes of the counseling sessions.

On the threshold question, the majority opted to recognize a psychotherapist privilege, pointing out that the 50 states and the District of Columbia have laws providing a form of psychotherapist privilege. This unanimous acceptance by state lawmakers is proof of a solid consensus, the Court said. It added that the draft Federal Rules included a provision, Rule 504, codifying a psychotherapist privilege.(24) The majority's initial ruling affirmed the Seventh Circuit decision.(25)

On the next issue--the nature of the privilege--the majority overturned the Seventh Circuit, which had recognized only a qualified privilege, capable of being defeated by a showing of compelling need. In contrast, the majority believed that subject to unspecified exceptions, the privilege had to be absolute. In Justice John Paul Stevens's words, "An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."(26)

Finally, the majority drew Scalia's fire by extending the privilege to licensed clinical social workers. The majority reasoned that because social workers provide a significant amount of mental health treatment, it would serve no discernible purpose to arbitrarily draw the line at psychiatrists and psychologists. The majority said that "the vast majority of States . . . extend" some type of privilege protection to consultations with licensed social workers.(27)

In his dissent, Scalia, joined by Chief Justice William Rehnquist, marshalled such precedents as Nixon, Trammel, and University of Pennsylvania and accused the majority of "ignor[ing the] traditional judicial preference for the truth."(28) In Scalia's view, there are few instances in which an asserted privilege promotes such a "transcendent" public good that "suppressing the truth" is "tolerable."(29)

The future

In his dissent in Jaffee, Scalia charges that the majority turned its back on the Court's "extensive precedent" assigning priority to the search for truth. Is it likely that the justice's worst fears will be realized? Will the majority decision in Jaffee prompt the lower courts to abandon their traditional hostility to privilege claims? It is submitted that notwithstanding Jaffee, the federal courts are likely to continue to vindicate discovery rights and brush aside most requests for the creation of new privileges and the expansion of existing ones.

Although the majority went quite far in upholding the psychotherapist privilege, the opinion makes it clear that the majority believes that the Court's earlier precedents are still good law. Early in his opinion, Stevens confirmed the vitality of the maxim that the public has a right to every man's evidence.(30) He reiterated that "the general rule" disfavors testimonial privileges. The justice approvingly cited many of the leading cases narrowing the scope of privilege doctrine, including Nixon, Trammel, and University of Pennsylvania.(31)

More important, Stevens went to great lengths to identify the factors that made Jaffee an extraordinary case justifying an exception to the general rule--factors that enable plaintiff attorneys to readily distinguish Jaffee in later cases.

To begin with, the justice argued that there is a much greater need for confidentiality in the psychotherapist-patient relation than there is in the physician-patient relation.

Treatment by a physician for physical ailments

can often proceed successfully on the basis of

a physical examination, objective information

supplied by the patient, and the results of diagnostic

tests. Effective psychotherapy, by

contrast, depends upon an atmosphere of confidence

and trust in which the patient is willing

to make a frank and complete disclosure

of facts, emotions, memories, and fears. Because

of the sensitive nature of the problems

for which individuals consult psychotherapists,

disclosure of confidential communications 

made during counseling sessions may

cause embarrassment or disgrace.(32)

Moreover, Stevens noted the extraordinary consensus favoring the recognition of a psychotherapist privilege. Distinguishing Gillock, he pointed out that the privilege was among nine recommended by the Advisory Committee in its proposed privilege rules.(33) The justice seemed even more impressed by the fact that all the states and the District of Columbia have some form of psychotherapist privilege.(34) In that respect, it is hard to imagine a stronger case for recognizing an uncodified privilege.

Given the tenor of Stevens's opinion, it should be a simple matter for plaintiffs to distinguish Jaffee in future cases. The hypothetical cases set out at the beginning of this article are illustrative.

In the first case, the defendant urged the court to expand the attorney-client privilege to suppress employee B's witness statement even though she did not acquire her knowledge of the accident in the course of her work. Although the ALI draft of the Restatement of the Law Governing Lawyers supports extension, this would be at odds with the law in many jurisdictions.(35) The support for the proposed extension does not even approach the unanimity Stevens found in Jaffee.(36)

Assume that in the first case, the plaintiff sought discovery of the employee driver A's medical records. The defense might claim a general medical privilege. The plaintiffs could counter by pointing to Stevens's language indicating that there is much less need for a privilege to shield the physician-patient relation.

In the second case, the defense pressed the court to recognize a novel privilege for self-critical corporate reports. As in Gillock, the plaintiff can cite the original draft of Article V as support for his position. Just as the draft omitted any privilege for state legislators' official acts, it did not contain a provision that could be stretched to create a self-critical privilege.

To be sure, Jaffee is a noteworthy decision. However, it would be a mistake to overstate its importance. Nothing in the majority opinion suggests that the Court is on the brink of abandoning its traditional stance that the search for truth generally overrides privilege claims.

The justices are realistic enough to understand that privileges obstruct the search for truth and that many of the alleged benefits of privileges are speculative.(37) The justices realize that many litigants need thorough discovery to intelligently evaluate their cases and prepare for trial. Jaffee should not be read as announcing a severe restriction on plaintiffs' ability to conduct necessary, intensive discovery.

The early returns from the lower courts indicate that most of those courts interpret Jaffee as leaving intact the federal bias against evidentiary privileges.(38) At least for the moment, the plaintiff's right to probing discovery is safe from a new onslaught of privilege claims.

Notes

(1.) John W. Cooley, Puncturing Three Myths About Litigation, 70 A.B.A.J. 75, 76 (1984).

(2.) Joseph Kelner, Settlement Techniques--Part 1, TRIAL, Feb.1980, at 39.

(3.) C. Michael Lewis, Effective Use of Discovery Tools, 52 OKLA. B.J. 1773 (1981).

(4.) See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

(5.) See, e.g., Teichgraeber v. Memorial Union Corp., 932 F. Supp. 1263, 1265-66 (D. Kan. 1996).

(6.) Id. at 1266. (citing Corrigan v. Methodist Hosp., 158 ER.D. 54, 57 (E.D. Pa. 1994)).

(7.) AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW GOVERNING LAWYERS, TENT. DRAFT NO.175 (Apr.11,1988).

(8.) For a discussion of the self-critical analysis privilege, see generally Donald C. Dilworth, State Environmental Audits Offer Immunity, Privilege to Polluters, TRIAL, Dec.1996, at 70; Note, The Privilege for Self-Critical Analysis, 96 HARV. L. REV.1083 (1983); see also Torres v. Kuzniasz, 936 R Supp. 1201, 1214-15 (D.N.I. 1996); Joseph G. Manta & Stephen E Brock, Protecting the Confidentiality of Corporate Internal Investigations and Compliance Audits, 12 CORPORATE COUNSEL'S Q. 1 (1996); Robert J. Bush, Comment, Stimulating Corporate Self-Regulation--The Corporate Self-Evaluative Privilege: Paradigmatic Preferentialism or Pragmatic Panacea, 87 N.W. U. L. REV.597 (1993).

(9.) See, e.g., University of Pennsylvania v. E.E.O.C., 493 U.S.182 (1990) (privilege for academic peer review); United States v. Gillock, 445 U.S. 360 (1980) (privilege against disclosure of legislative acts by state legislator); United States v. Arthur Young & Co., 465 U.S.805 (1984) (accountant-client privilege).

(10.) United States v. Nixon, 418 U.S. 683, 710 (1974).

(11.) 116 S. Ct.1923, 1932 (1996).

(12.) 441 U.S.153 (1979).

(13.) Id. at 175.

(14.) 445 U.S.40,50 (1980) (quoting United States v. Bryan, 339 U.S.323, 331 (1950)).

(15.) Id. at 52.

(16.) 445 U.S.360 (1980).

(17.) Id. 367-68.

(18.) Id. at 373-74.

(19.) 465 U.S.805.

(20.) See generally CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, MODERN EVIDENCE: DOCTRINE AND PRACTICE [sections]5.41 (1995).

(21.) Young, 465 U.S.805, 814-15.

(22.) 493 U.S. 182.

(23.) Id. at 189.

(24.) 116 S. Ct.1923, 1929-30.

(25.) 51 F.3d 1346 (7th Cir.1995).

(26.) 116 S. Ct.1923, 1932 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).

(27.) Id. at 1931.

(28.) Id. at 1933.

(29.) Id. at 1941.

(30.) Id. at 1928.

(31.) Id.

(32.) Id. at 1928-29.

(33.) Id. at 1930.

(34.) Id. at 1929.

(35.) RONALD L. CARLSON ET AL., EVIDENCE IN THE NINETIES 782-83 (3d ed.1991).

(36.) The accountant-client relation can be distinguished on the same ground. Only a minority of states have adopted a privilege for that relation. MUELLER & KIRKPATRICK, supra note 20.

(37.) The empirical research conducted to date largely undercuts the claims of many privilege proponents. Daniel W. Shuman & Myron E Weiner, The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege, 60 N.C. L. REV. 893 (1982); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV.351 (1989); Note, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine, 71 YALE L.J. 1226 (1962).

(38.) See, e.g., In re Grrand Jury, 103 F.3d 1140 (3d Cir. 1997); Klonoski v. Mahlab, 953 F. Supp. 425 (D.N.H.1996); United States v. Red Elk, 955 E Supp. 1170,1178 (D.S.D. 1997).

Edward J. Imminkelried is Professor of Law at the University of California, at Davis. He is currently revising the privilege volume of the Wigmore evidence treatise.