Rule 501

General Rule

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. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness, person, government, state, or political subdivison thereof shall be determined in accordance with state law.

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Note

Congress significantly amended the privilege rules proposed by the Supreme Court by deleting entirely the nine non-constitutional privileges and the three general rules proposed by the Court. In their place, Congress enacted a single rule that retained the status quo and provided further that the law of privileges shall be developed by the courts as governed by the principles of the common law, except in civil actions in which state law supplies the rule of decision with respect to which the state law of privileges shall govern.

A technical difference between the House and Senate’s approaches to civil cases in which state law applied was resolved by the Conference Committee in favor of the House’s version.

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Report of House Committee on the Judiciary

Article V as submitted to Congress contained thirteen rules. Nine of those rules defined specific non-constitutional privileges which the federal courts must recognize (i.e., required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Another rule provided that only those privileges set forth in Article V or in some other Act of Congress could be recognized by the federal courts. The three remaining rules addressed collateral problems as to waiver of privilege by voluntary disclosure, privileged matter disclosed under compulsion or without opportunity to claim privilege, comment upon or inference from a claim of privilege, and jury instruction with regard thereto.

The committee amended Article V to eliminate all the Court’s specific rules on privileges. Instead, the committee, through a single rule, 501, left the law of privileges in its present state and further provided that privileges shall continue to be developed by the courts of the United States under a uniform standard applicable both in civil and criminal cases. That standard, derived from Rule 26 of the Federal Rules of Criminal Procedure, mandates the application of the principles of the common law as interpreted by the courts of the United States in the light of reason and experience. The words "person, government, state, or political subdivision thereof" were added by the committee to the lone term "witnesses" used in Rule 26 to make clear that, as under present law, not only witnesses may have privileges. The committee also included in its amendment a proviso modeled after Rule 302 and similar to language added by the committee to Rule 601 relating to the competency of witnesses. The proviso is designed to require the application of state privilege law in civil actions and proceedings governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), a result in accord with current federal court decisions. See Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 555-556 n.2 (2d Cir. 1967). The committee deemed the proviso to be necessary in the light of the Advisory Committee’s view (see its note to Court Rule 501) that this result is not mandated under Erie.

The rationale underlying the proviso is that federal law should not supersede that of the states in substantive areas such as privilege absent a compelling reason. The committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from state policy. In addition, the committee considered that the Court’s proposed Article V would have promoted forum shopping in some civil actions, depending upon differences in the privilege law applied as among the state and federal courts. The committee’s proviso, on the other hand, under which the federal courts are bound to apply the state’s privilege law in actions founded upon a state-created right or defense, removes the incentive to "shop."

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Report of Senate Committee on the Judiciary

Clearly, the most far-reaching House change in the rules as promulgated, was the elimination of the Court’s proposed rules on privilege contained in Article V. Article V purported to define the privileges to be recognized in the federal courts in all actions, cases, and proceedings; any alleged privilege not enumerated in Article V (e.g., that of a news reporter) was deemed not to exist and could not be given effect unless of constitutional dimension. The privileges recognized included trade secret, lawyer-client, husband-wife, doctor-patient (but applicable only to psychotherapists), identity of informer, secrets of state, and official information.

From the outset, it was clear that the content of the proposed privilege provisions was extremely controversial. Critics attacked, and proponents defended, the secrets of state and official information privileges, with the nub of the disagreement being whether the rule defining them was merely codifying existing law. In addition, the husband-wife privilege drew fire as a result of the conscious decision of the Court to narrow its scope from that recognized under present federal decisions. The partial doctor-patient privilege seemed to satisfy no one, either doctors or patients; and even the attorney-client privilege as drafted came in for its share of criticism because of its failure to define representative of the client, a critical issue for corporations and organizations. Much controversy also attended the failure to include a newsman’s privilege. Further, there was dissatisfaction with the policy of the Court’s rule not to require application of state privilege in civil actions where the underlying issues were governed by substantive state law, a result which many legal scholars deemed mandated by Erie R. Co. v. Tompkins. Finally, some commentators questioned the wisdom of promulgating rules of privilege under the rules Enabling Act, on the ground that in their view, the codification of the law of privilege should be left to the regular legislative process.

Since it was clear that no agreement was likely to be possible as to the content of specific privilege rules, and since the inability to agree threatened to forestall or prevent passage of an entire rules package, the determination was made that the specific privilege rules proposed by the Court should be eliminated and a single rule (Rule 501) substituted, leaving the law in its current condition to be developed by the courts of the United States utilizing the principles of the common law. In addition, a proviso was approved requiring federal courts to recognize and apply state privilege law in civil cases governed by Erie R. Co. v. Tompkins, supra, as under present federal case law.

The rationale underlying the proviso as passed by the House is that federal law should not supersede that of the states in substantive areas such as privilege absent a compelling reason. This reflects the view that in civil cases in the federal courts, where a claim or defense asserted is not grounded upon a federal question, there is no federal interest in the application, or in its resolution, of a uniform law of federal privilege strong enough to justify departure from state policy. Another rationale for the proviso is that the Court’s proposal would have prompted forum shopping in some civil actions, depending upon differences in the privilege law applied as among the state and federal courts. The House provision, on the other hand, under which the federal court is bound to apply the state’s privilege law in actions founded on a state-created right, might limit the incentive to shop.

Your committee is in accord with the approach of the House . . .

Two other comments on the privilege rule should be made. The committee has received a considerable volume of correspondence from psychiatric organizations and psychiatrists concerning the deletion of Rule 504 of the rule submitted by the Supreme Court. It should be clearly understood that, in approving this general rule as to privileges, the action of Congress should not be understood as disapproving any recognition of a psychiatrist-patient, or husband-wife, or any other of the enumerated privileges contained in the Supreme Court rules. Rather, our action should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis.

Further, we would understand that the prohibition against spouses testifying against each other is considered a rule of privilege and covered by this rule and not by Rule 601 of the competency of witnesses.


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