The Federal Evidence Quasi-Privilege Provisions, Rules 407-10 and 412, Resting on Extrinsic Social Policies: The Propriety of Using Protective Orders to Safeguard Those Policies During the Most Important Litigation Phase, Pretrial Discovery

Author: Edward J. Imwinkelreid


The Advisory Committee on the Federal Rules of Evidence plausibly argued that although the probative-worth rationale for a quasi-privilege comes into play only at trial, pretrial proceedings can strain or violate the extrinsic social policy serving as the other rationale for the doctrine.  Despite the Committee’s 1994 Note, though, in the intervening years, few commentators and courts have even alluded to the implications of quasi-privileges’ extrinsic policy rationales for pretrial proceedings.  The thesis of this short article is that the Committee’s argument is sound and the argument should be extended to the other quasi-privileges codified in the Federal Rules of Evidence.

            To develop that thesis, this Article proceeds in four steps.  Part I highlights the importance of the issue by demonstrating that pretrial discovery has become the center of gravity in contemporary litigation in the United States.  In both federal and state court, only a small percentage of filed cases culminate in trial.  In most cases, the outcome for the client turns on the developments during pretrial discovery.  Moreover, as a general proposition, under Federal Rules of Civil Procedure a litigant may discover information that would be inadmissible at trial.  For example, under Federal Rule of Civil Procedure 32, at a deposition hearing a party need not object on the ground that the question posed to the deponent calls for inadmissible hearsay, expert opinion, or secondary evidence.  Indeed, an attorney could be sanctioned for instructing a deponent to refuse to answer based on one of those evidentiary doctrines. 

            Part II of the Article describes the quasi-privilege provisions in the Federal Rules and identifies both rationales for each doctrine.  Part III is also descriptive and reviews the courts’ decidedly mixed record on recognizing the procedural ramifications of the quasi-privileges’ substantive extrinsic policy rationales.  On occasion a few courts have perceived and respected those implications; but in most instances, the courts ordinarily have either been oblivious to those implications, or dismissed the implications even when litigants were astute enough to point them out to the court.

            Finally, Part IV shifts from description to critical evaluation.  Initially, Part IV addresses the question of whether the Federal Rule’s quasi-privilege provisions dictate that the courts consider the extrinsic policies underlying the provisions during pretrial discovery.  Part IV.A. concludes that that question should be answered in the negative.  However, Part IV.B. then turns to an analysis of the applicability of the protective order provision in Federal Rule of Civil Procedure 26—the provision that the Advisory Committee mentioned in its Note accompanying the 1994 amendment to Rule 412.  Part IV concludes that, given the right facts—case-specific facts demonstrating that public disclosure during pretrial discovery would impinge on the extrinsic policy inspiring a quasi-privilege in the instant lawsuit—Federal Rule of Civil Procedure 26 empowers the courts to vindicate that policy by issuing a protective order.

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