PRIVILEGED MATTER DISCLOSED UNDER
WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE [TRANSFERRED]
A claim of privilege is not defeated by a disclosure which was (1) compelled
erroneously or (2)
made without opportunity to claim the privilege.
Rule 511 was amended, effective March 1, 2014. The content of the rule was transferred to Rule 510 to create a single rule on waiver of privilege.
Under Rule 510, a voluntary disclosure of privileged material operates as a waiver
of a given
privilege. This rule provides for a contrary result whenever the disclosure is erroneously
or is made without opportunity by the holder to claim the privilege.
The rule will most often operate as a rule of exclusion, i.e., it will render
inadmissible evidence of
the prior disclosure in a civil or criminal action to which the holder of the privilege is a party.
the rule does more than prohibit the use of such evidence against the holder of the privilege, it
provides that the privilege shall remain intact, to be treated as originally granted. Thus, the
as a witness, may claim the privilege, in an action to which he is not a party. Cf. The proposed
Federal Rule 512, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West
Pub. Co. 1975).
The need for a protective rule of this type is clear with respect to disclosures
compelled. Whether the compulsion is judicial or comes from some other authority, the rules of
privilege should not be left open to circumvention by their very breach.
The second basis for exclusion is meant to deal with those instances in which
disclosure is made
by someone other than the holder of the privilege. This would include disclosure by a recipient
privileged information (e.g. a lawyer), one allowed to transmit privileged information (e.g., a
lawyer's representative), or an eavesdropper, among others.
It may be argued that once disclosure by a third party is made, the need for
and, therefore, the privilege should not be maintained. However, with the increasing number and
sophistication of intrusions into individual privacy, it is necessary to guard jealously those
confidential communications deemed of such social importance as to warrant being privileged.
provision will maximize the effect of a given privilege, although, as may be argued, it cannot
repair a breach of confidentiality.
Sources: Joint Procedure Committee Minutes
: of April 25-26, 2013,
page 35; January 29, 1976,
page 12. Rule 511, Uniform Rules of Evidence.