Invocation of an evidentiary privilege traditionally meant that the confidential communications of a holder were protected from disclosure during judicial, administrative, or legislative proceedings. This model of evidentiary privilege law does not take into account information gathered from unauthorized preproceeding disclosures of otherwise privileged communications. A minority of courts seem willing to exclude this derivative evidence with little or no explanation. These courts may unwittingly base their decision on privacy concepts recently proposed as one of the modern justifications for the existence of evidentiary privilege in law. Courts confronted with this issue analyze it in confusingly, and often contrastingly, different manners.
James J. Dalessio,
Evidentiary Privileges and the Exclusion of Derivative Evidence: Commentary and Analysis,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol26/iss3/6