Evidentiary Privileges The Top Ten and How They Operate
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A privilege can keep certain communications or materials from being compelled in court or discovery. The rules are specific: they identify who may claim the protection, what it covers, and when it can be lost or overridden. This Maryland focused overview highlights ten protections that may arise in civil injury litigation. The law of the forum controls, and federal cases can apply different rules.
1 Attorney client communications
Maryland recognizes an attorney client privilege by statute. It generally protects confidential communications between a client and lawyer made to obtain or provide legal advice. The client holds the privilege and may assert or waive it. Sharing a privileged communication with outsiders can waive protection; copying a lawyer on an ordinary business email does not automatically make it privileged. The privilege protects communications, not the underlying facts or documents that existed independently. Crime fraud and other narrow exceptions may apply. Md. Code, Courts and Judicial Proceedings (CJP) § 9-108.
2 Attorney “work product”
Work product is a discovery protection, not simply another name for attorney client privilege. Maryland Rule 2-402(d) generally protects materials prepared in anticipation of litigation or for trial. Fact work product may be ordered produced on a showing of substantial need and inability without undue hardship to obtain its substantial equivalent. A court gives special protection to an attorney’s mental impressions, conclusions, opinions, or legal theories. The rule also addresses a party’s own statement. Md. Rule 2-402(d).
3 Psychotherapist patient communications
A patient or authorized representative may refuse to disclose, and prevent a witness from disclosing, qualifying confidential communications made for diagnosis or treatment with a psychiatrist or licensed psychologist, subject to statutory exceptions. The privilege is held for the patient; putting mental condition at issue does not always produce a simple all or nothing waiver, so scope must be analyzed under the statute and case law. CJP § 9-109.
4 Other mental health and counseling communications
Maryland separately protects covered communications with certain providers, including specified psychiatric mental health nurses and professional counselors, and separately covers communications made during counseling by certain health care professionals. The exact provider, service, and exceptions matter. Statutes may include disclosures for court ordered examinations, written waivers, proceedings involving claims against a provider, or other defined circumstances. CJP §§ 9-109.1, 9-121.
5 “Confidential marital communications”
Maryland protects confidential communications made between spouses during marriage in specified proceedings. The privilege can continue after the marriage ends, but it does not turn everything one spouse saw or heard into a confidential communication. Statutory exceptions apply, including some proceedings involving a spouse as an alleged victim. CJP § 9-105.
6 “Spousal testimonial privilege” in criminal cases
This is distinct from the confidential marital communications privilege. In a criminal case, a person generally may not be compelled to testify against a spouse during the marriage, subject to statutory exceptions and the accused spouse’s ability to waive. It does not create a general shield against testimony in civil injury lawsuits. CJP § 9-106.
7 Clergy communications
A member of the clergy may not be compelled to testify about a confession or communication made in confidence by someone seeking spiritual advice or consolation. The communication’s purpose and confidentiality matter; a casual conversation with a religious leader is not automatically privileged. CJP § 9-111.
8 Medical review committee records
Maryland generally protects the proceedings, records, and files of a qualifying medical review committee from discovery and admission in a civil action. This can include hospital peer review and patient safety work. The protection does not automatically cover source records that were created and maintained independently of committee review; those may be obtainable through ordinary discovery. The statute has defined exceptions. Md. Code, Health Occupations § 1-401.
9 Mediation communications
For mediations covered by Maryland’s Mediation Confidentiality Act, a mediator and participants have confidentiality duties, and covered communications generally may not be disclosed or compelled. The Act defines which mediations are covered and provides exceptions, including certain disclosures to prevent bodily harm or death and court ordered disclosure in narrow circumstances to prevent sufficiently serious injustice or harm to the public interest. Check the statute and any separate agreement or court rule. CJP §§ 3-1801 through 3-1804.
10 “Fifth Amendment privilege” against self incrimination
A person may refuse to answer a question when a truthful answer could expose that person to criminal liability. The privilege protects testimonial communications, not every document or physical item, and belongs to individuals rather than corporations. It applies in civil proceedings as well as criminal cases, but a civil factfinder may in some circumstances draw an adverse inference from a valid invocation. The result depends on the forum and context. U.S. Const. amend. V.
Related protections that are often called privileges
Maryland’s physician patient confidentiality statutes and HIPAA regulate access, disclosure, and handling of health information; they do not make every medical record categorically privileged in court. Settlement negotiation rules generally exclude compromise offers and statements when offered to prove liability or the amount of a disputed claim, but that is an evidence rule with defined purposes and exceptions, not a blanket secrecy privilege. Rules for subsequent remedial measures and apologies are also evidentiary limits, addressed separately in this draft.
How to analyze a privilege claim
Identify the exact communication, record, or testimony; determine who holds the protection; check whether it was confidential and made for a protected purpose; review any waiver, exception, or statutory procedure; and distinguish discovery from admissibility at trial. A claim of privilege should be specific enough to let the court evaluate it without revealing the protected substance. Applicable law may differ in federal court or when another state’s law governs.
Related Maryland Cases and Authorities
U.S. Constitution, amendment V; Md. Rules 2-402(d), 5-408; Md. Code, Courts and Judicial Proceedings §§ 3-1801 through 3-1804, 9-105, 9-106, 9-108, 9-109, 9-109.1, 9-111, 9-121; Health Occupations § 1-401; Health-General §§ 4-301 through 4-309.