Novel privilege arguments have been raised in discovery proceedings. This article is intended to discuss these new arguments and their shortfalls.

Because privileges are in derogation of the purpose of courts to do justice based upon facts and law, and violate the principle that the jury is entitled to everyone’s testimony, courts must narrowly construct the validity and extent of any claimed privilege. The law does not favor evidentiary privileges, for they impede the courtroom search for the truth. The burden to demonstrate that a communication or document falls within the scope of a recognized privilege initially lies with the party claiming a privilege. (See T.M. v. Elwyn, 950 A.2d 1050, 1063 (Pa. Super. 2008); Joyner v. Southeastern Pennsylvania Transportation Authority, 736 A.2d 35 (Pa. Commw. 1999); and Custom Designs & Manufacturing v. Sherwin-Williams, 39 A.3d 372, 376 (Pa. Super. 2012). Once a prima facie demonstration of privilege has been established, the burden shifts to the party seeking discovery of the evidence to demonstrate that disclosure does not violate the privilege or an exception applies. Pennsylvania Rule of Evidence 501, adopted in 1998, explicitly leaves both statutory privileges and common-law privileges unaffected by the rules of evidence. (“Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules.”)

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