RULE 511. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE
A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.
EXPLANATORY NOTE
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 compelled 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.But, 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 holder, 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 The proposed Federal Rule 512, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub.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 erroneously 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 of 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 confidentiality ceases 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. This provision will maximize the effect of a given privilege, although, as may be argued, it cannot totally repair a breach of confidentiality.
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 12. Rule 511, Uniform Rules of Evidence (1974).