Academic journal article St. John's Law Review

The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege

Academic journal article St. John's Law Review

The Alienability of Evidentiary Privileges: Of Property and Evidence, Burden and Benefit, Hearsay and Privilege

Article excerpt

"[G]overnment has no other end but the preservation of property . . . ."l


Property and Evidence are two of the most ancient doctrinal areas in Anglo-American law. Courses devoted to these subjects are fixtures in the law school curriculum, and the subjects have generated a huge volume of commentary, including major treatises.2

Predictably, interfaces have developed between the doctrinal areas. For example, in hearsay doctrine, testimony about an unavailable declarant's out-of-court statement disserving his or her proprietary interest is considered so reliable that it is exceptionally admissible.3 Thus, if there were a lawsuit between the declarant's successor in title and a third party, the declarant's statements would be admissible against the new owner over a hearsay objection. The assumption is that the typical person is so aware of and so concerned about his property interests that he would not say something contrary to those interests unless it were true.4 Moreover, in many jurisdictions, in a lawsuit against a new owner, a third party would not even have to invoke the declaration-against-interest hearsay exception. At common law, if a person's predecessor in title to property made a statement about title to property, the statement was admissible against the current title holder as a vicarious admission.5 A Georgia statute refers to vicarious admissions by "privies in estate."6

On close scrutiny, however, the interface between Property and Evidence seems inconsistent. As the preceding paragraph indicates, a subsequent owner takes title burdened by hearsay evidence generated by his predecessor. The inconsistency is that while the subsequent owner must shoulder the burdens, he does not receive the evidentiary benefits. More specifically, as we shall see, the new owner generally does not receive the benefit of any evidentiary privileges that the predecessor enjoyed for statements relating to the property.

A recent California case involving a show business legend, the late Bing Crosby, is illustrative. The style of the case is HLC Properties Ltd. v. Superior Court.7 The litigation centered on the question of the percentage royalty that Mr. Crosby was owed by his record company. The plaintiff, HLC, was a partnership formed by some of Mr. Crosby's surviving relatives and others. The defendant was MCA, a successor to Decca Records. The plaintiff claimed that for years the defendant had underpaid royalties under its contracts with Mr. Crosby. The defendant countered that the royalty provisions in the written contracts were ambiguous and that it was entitled to present extrinsic evidence of the parties' intentions. To gather such evidence, the defendant demanded the production of records documenting communications between Mr. Crosby and his attorneys about the contracts. The plaintiff objected to discovery on the ground that the documents were protected by the attorney-client privilege and that the plaintiff was entitled to assert the privilege.

The record indicated that during his lifetime, Mr. Crosby had assembled a business staff, sometimes called Bing Crosby Enterprises ("BCE"), to help him administer his properties. The contracts and properties themselves went into probate when Mr. Crosby died. As previously stated, after his death, some of Crosby's surviving relatives and third parties formed HLC. The probate court approved the transfer of the contracts and properties to HLC.

Based on this record, the trial judge overruled the plaintiffs objection. The trial judge found that during his lifetime, Bing Crosby was the client with control over any evidentiary privilege. The judge further ruled that although after his death Crosby's privilege passed to his personal representative, the privilege terminated when the representative was discharged at the end of probate.8 In so ruling, the trial judge relied on section 953 of the California Evidence Code. That statute enumerates the holders of the attorney-client privilege:

As used in this Article, "holder of the privilege" means:

(a) The client when he has no guardian or conservator. …

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