Academic journal article The University of Memphis Law Review

A New Trend in the Law of Privilege: The Federal Settlement Privilege and the Proper Use of Federal Rule of Evidence 501 for the Recognition of New Privileges

Academic journal article The University of Memphis Law Review

A New Trend in the Law of Privilege: The Federal Settlement Privilege and the Proper Use of Federal Rule of Evidence 501 for the Recognition of New Privileges

Article excerpt

On the present occasion, my lords, I pronounce with the utmost confidence, as a maxim of indubitable certainty, '[t]hat the public has a claim to every man's evidence,' and that no man can plead exemption from this duty to his country.1


The above passage, as simple as it is obscure, has provided the foundation for the law of evidence in the United States. The notion that a trier of fact, and the public in general, is entitled to the use of "every man's evidence" in order to determine truth is now nearly axiomatic. The idea forms the basis for the discovery rules in the Federal Rules of Civil Procedure,2 and has received acknowledgment from nearly all courts, state and federal.3

But much more familiar than the Duke of Argyll's antiquated quotation are his maxim's exceptions.4 Before the Duke uttered his now famous call for "every man's evidence," English courts found that certain evidence was entitled to privilege and immune from discovery or disclosure, even if it had value to the truthseeking process.5 As detailed below, a common law privilege was extended to communications that the courts, and in fact society, deemed worthy of protection, usually because of the close and sensitive relationship between the parties to the communications.

The evolution of the law of privilege has continued under modern American federal law, promulgated usually by judicial decree, but also at times by force of statute. The most notable federally recognized privileges, of course, protect the communications between a client and his attorney, a wife and her husband, and a patient and his therapist. But others have emerged as well, including a federal voting privilege, a clergyman's privilege, and most recently, a settlement privilege.

Prior to 1975, there was no statutory scheme by which federal courts created privilege. Judges recognized privileges entirely as a function of common law, and therefore relied on history for guidance. Accordingly, federal courts generally only recognized those privileges that had been engrained under English common law.

In 1975, Congress, through Federal Rule of Evidence 501, directed federal judges to examine the law of privilege and confirm the vitality of each privilege on a case-by-case basis. However, rather than freeze the law of privilege as it existed at common law, Rule 501 instructed courts to evaluate privileges in the "light of reason and experience," and, presumably, to create new ones if necessary.

But the trend since 1975 has been for federal judges to refuse recognition to any type of "new" privilege, and instead adhere strictly to precedent. In fact, the Supreme Court has only used Rule 501 to recognize privileges either established at common law or included in the Supreme Court's original draft of the Federal Rules of Evidence. Because of this prevailing trend, there has for some time been doubt as to whether courts have the power, or the inclination, to break from the common law and create new privileges under Rule 501,7 even though the rule seemingly allows for it.

Recently, however, the United States Court of Appeals for the Sixth Circuit upset the trend and decided the case of Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc.8 Goodyear is most significant because it represents the rare occasion-and arguably, the first time-in which a federal appellate court has recognized a completely new privilege pursuant to its Rule 501 power. In that opinion, the Sixth Circuit became the first federal court to recognize a "settlement privilege"-a privilege between adverse parties for communications made at the bargaining table while attempting to settle a dispute. A settlement privilege was neither recognized at common law nor among the privileges included in the original draft of the Federal Rules. Nonetheless, the court found that "reason and experience" mandated the creation of such a privilege, citing Rule 501.9

This article will attempt to thoroughly analyze the emergence of this new privilege in light of a historical trend against recognizing new privileges. …

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