Evidentiary Privileges — Florida and Federal Court

The Evidence Code · Topic Guide

§§ 90.501–90.510, Fla. Stat. · Fed. R. Evid. 501–502 · Phillips, Hunt & Walker

A privilege is the right to refuse to disclose — or to prevent someone else from disclosing — a confidential communication. It’s the strongest tool in the evidence code, because a privilege doesn’t just make evidence inadmissible; it keeps it from being obtained at all. Get a privilege call wrong and the damage is often irreversible.

The structural divide you can’t miss

Florida is a closed list. Federal is common-law and open.

§ 90.501, Fla. Stat. says privileges exist in Florida only as provided by the State Constitution, the Evidence Code, or a specific statute. If it isn’t listed, it isn’t a privilege in Florida court.
Fed. R. Evid. 501 says federal privileges are governed by the common law “as interpreted by United States courts in the light of reason and experience” — an evolving standard the Supreme Court has used to recognize new privileges (the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1996)).
Choice-of-law overlay: in a federal civil case, if state law supplies the rule of decision on a claim or defense, state privilege law governs.

Lawyer-client (attorney-client) privilege

Florida: § 90.502, Fla. Stat.
Federal: No numbered rule beyond FRE 501 — the privilege is federal common law. Upjohn Co. v. United States, 449 U.S. 383 (1981), controls the corporate application.

Points that recur in litigation: communication (not underlying facts) is privileged; the crime-fraud exception excludes communications made to further a future crime or fraud; corporate and joint-client situations have their own waiver traps.

Fiduciary lawyer-client — Florida-specific

§ 90.5021, Fla. Stat. preserves the lawyer-client privilege for a fiduciary (trustee, personal representative, guardian). The federal common law has no direct counterpart section.

Work-product protection

Federal work product: substantive protection in Fed. R. Civ. P. 26(b)(3). Waiver and limitations on waiver in Fed. R. Evid. 502.
Florida work product: substantive protection in Fla. R. Civ. P. 1.280(b)(4). Inadvertent-disclosure clawback in Fla. R. Civ. P. 1.285.
Practical takeaway: in any document-heavy federal case, ask the court for a Rule 502(d) order at the outset. It makes disclosures non-waiving everywhere.

Psychotherapist-patient privilege

Florida: § 90.503, Fla. Stat.
Federal: Recognized as a federal common-law privilege by Jaffee v. Redmond, 518 U.S. 1 (1996). Includes licensed social workers acting in a psychotherapeutic role.

Trap: in personal-injury and employment cases where the plaintiff puts emotional distress at issue, the privilege is often partially waived. Draft the damages pleadings deliberately.

Spousal privileges — two doctrines, don’t confuse them

Marital-communications privilege. Protects confidential communications between spouses during the marriage. Recognized in both Florida and federal court.
Spousal-testimony (adverse-testimony) privilege. Federal common-law privilege held by the witness spouse under Trammel v. United States, 445 U.S. 40 (1980). Florida does not have a separate testimonial privilege — § 90.504, Fla. Stat. covers only confidential communications.

Clergy privilege

Florida: § 90.505, Fla. Stat.
Federal: Recognized as a federal common-law privilege; no numbered rule.

Journalist’s privilege

Florida: § 90.5015, Fla. Stat. — a qualified privilege for professional journalists.
Federal: No federal statutory or Rule-based journalist privilege. Some federal circuits recognize a qualified First Amendment privilege by case law; the U.S. Supreme Court has not established one.

Accountant-client privilege — a Florida-only privilege

§ 90.5055, Fla. Stat. creates an accountant-client privilege in Florida. There is no federal common-law accountant-client privilege. Federal law recognizes a narrow tax-practitioner privilege at 26 U.S.C. § 7525, limited to non-criminal tax matters.

Victim-advocate privileges — Florida-only

§ 90.5035, Fla. Stat. — Sexual assault counselor-victim privilege.
§ 90.5036, Fla. Stat. — Domestic violence advocate-victim privilege.
§ 90.5037, Fla. Stat. — Human trafficking victim advocate-victim privilege.

Trade-secret privilege

§ 90.506, Fla. Stat. — the owner of a trade secret has a privilege to refuse to disclose. Federal law provides analogous protection through Fed. R. Civ. P. 26(c) protective orders and, for civil trade-secret claims, the Defend Trade Secrets Act (18 U.S.C. § 1836).

Waiver, compulsion, and the mechanics — §§ 90.507–90.510 & FRE 502

Waiver by voluntary disclosure. § 90.507, Fla. Stat. · Fed. R. Evid. 502.
Disclosure under compulsion. § 90.508, Fla. Stat.
Application of privilege. § 90.509, Fla. Stat.
Comment on the claim. § 90.510, Fla. Stat.
FRE 502(d) court orders. The single most powerful tool in federal privilege practice.

Practical points from the trial bar

Assert on the record and specifically. “Attorney-client privilege” beats “privileged” by a mile.
Log privileged withholdings. A privilege log is required by Fla. R. Civ. P. 1.280(b)(6) and Fed. R. Civ. P. 26(b)(5).
Watch the presence of third parties. A “confidential” communication with a stranger in the room is generally not privileged.
Federal vs. state on the same case. When a matter has both federal and state claims, plan for the possibility that some communications are privileged in one forum but not the other.
At-issue and crime-fraud exceptions. The two most common erosions of privilege.
502(d) at the outset. Ask for one. The order is short, and its protection is disproportionate to the effort.