When recently defending my physician client in a medical malpractice deposition, Plaintiff’s counsel started asking questions outside the lines. I objected and he immediately retorted back that I did not know the Rules of Evidence and that his questions were legitimate. He claimed certain testimony privileges only apply in criminal matters. I stood on my objections and my physician client followed my lead and did not answer the questions. But a good reminder never hurts as to the testimonial privileges recognized under the Nebraska Rules of Evidence:

  • 27-501 You cannot refuse to be a witness, refuse to disclose any matter, refuse to produce an object or writing, or prevent anyone else from being a witness or disclosing a matter or writing.
  • 27-503 Confidential communications between lawyer and client are privileged. Confidential communications are those not intended to be disclosed to third persons in the furtherance of professional legal services to the client. The privilege does not apply if the services of a lawyer sought are to aid, commit or plan a crime or fraud, relate to a deceased client, are relevant to an issue of breach of duty by the lawyer, deal with lawyer attesting to a document or if the communication is relevant to a common interest of two clients.
  • 27-504 This is commonly called the physician-patient- privilege. It is actually a healthcare-patient-privilege and includes all members of the medical profession, counselors, dentists, etc. To be applicable, the patient must be examined, interviewed, diagnosed, or treated by the healthcare provider for physical, mental, or emotional conditions. The healthcare provider usually must be licensed. The communication is confidential if it is not intended to be disclosed to third persons beyond those who are participating in the diagnosis and treatment of the patient. The privilege does not apply to any proceeding where the patient has raised their health as an element of the claim or defense or in a criminal proceeding for juveniles, disabled, or incompetent people. Lastly, there is no privilege regarding any judicial proceeding related to unlawfully trying to attempt to obtain controlled substances. Of course, this provision must be read in conjunction with HIPAA.
  • 27-505 This is the husband-wife privilege which essentially indicates neither a husband nor a wife may be examined or compelled to testify as to any confidential communications made between them. Exceptions are of course causes of action relating to marital and/or family issues.
  • 27-506 Communications to clergymen are privileged if that person is reasonably believed to be a priest, minister, rabbi or other such functionary of a religious organization and the communication is not intended to be further disclosed except to the clergymen.
  • 27-507 No one can be compelled to disclose how they voted in a political election unless the vote was cast illegally.
  • 27-508 A person can claim the privilege of refusing to disclose trade secrets formed by him or his employer but cannot conceal fraud. If disclosed, usually there will be a protective order.
  • 27-509 The government has the privilege to refuse to give evidence and prevent public officers from giving evidence. Official communications are in confidence when the public interest would suffer by the disclosure.
  • 27-510 Government entities may refuse to disclose the identity of a person who is an informant to law enforcement or a legislative committee.

By the way, 27-513 indicates that neither counsel nor a judge may comment to the jury if someone claims a privilege and no inference may be drawn therefrom. Claims of privilege must be made outside of the presence of the jury. An appropriate jury instruction may be requested.