Privileges and Confidentiality: There are More Than You Think

You probably know of, or are aware of, the attorney client privilege. But did you know there were many other forms of privileges? These are times when nobody, in or out of litigation, can ever compel you to provide confidential information. Knowing what these privileges are, other than the well known attorney client privilege, can help you know when what you are saying is, ro is not protected.

Spousal Privilege

A party can refuse to give information about communications with a spouse, so long as the conversation or information was transmitted while the parties were married. The privilege can be asserted even after a divorce.

The practical problem is that both spouses have the privilege, which means that either spouse can waive the privilege. But if husband and wife are on the same page, and both assert the privilege, nobody can ask a wife what she discussed with her husband about a given matter, whether in or out of trial, in deposition, or anywhere else.

Work Product

Certain documents and information are kept in preparation for, or anticipation of litigation. Think of an accident report, or a statement that a business takes from an employee about an event that happened that could lead to liability.

This information is called work product. If something is kept normally in the course of business (like daily video surveillance, or regular employee schedule work logs), it probably is not work product. But if it is something that is created solely for the purpose of lawsuits in the future, it is confidential and privileged under the work product privilege, and the other side to your lawsuit cannot ask you to produce that information.

Privacy

Unlike the US Constitution, the Florida Constitution does have in it, a specific right to privacy for all citizens. Certainly, when you file a lawsuit, you waive some of those privileges—you can’t say that you lost money in a business lawsuit, and then claim privilege if the other side wants to see proof of your losses.

But the constitutional right to privacy can keep the other side from being overly intrusive about your finances, or your personal life, or matters that really may be totally unrelated to the litigation.

Clergy

Although it is rare, nobody can ask you information communicated between you and a religious leader of any religion, if the communication was made during the course of giving religious advice or solace. So, if you go to your clergy and want to apologize for an unscrupulous business practice, nobody can get that information from you, or your religious advisor.

Psychotherapist Privilege

Many people already know that we have confidentiality in our medical records. But that confidentiality applies to mental health counselors and psychotherapists as well. That includes counselors, psychiatrists, or psychologists.

We can help you understand what you can expect in your business litigation case. Call the West Palm Beach business litigation attorneys at Pike & Lustig today for help with your business’ legal needs.

Sources:

flsenate.gov/Laws/Statutes/2018/90.502

floridabar.org/the-florida-bar-journal/the-work-product-privilege-in-a-nutshell/