Rule 501

Rule 501 of the Federal Rules of Evidence states that:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Courts have interpreted this to limit the creation of new privileges. Rule 501 does not "freeze" the law of privilege, but expressly envisions that the law will develop incrementally. See Trammel v. United States, 445 U.S. 40, 47, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980) ("In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege."). In order for a new privilege to be adopted, the relevant competing interests must be appropriately considered and balanced.

The Supreme Court will not "create and apply an evidentiary privilege unless it 'promotes sufficiently important interests to outweigh the need for probative evidence.'" University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990) (quoting Trammel, 445 U.S. at 51). Moreover, because the "testimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man's evidence, any such privilege must be strictly construed." Id. (quoting United States v. Bryan, 339 U.S. 323, 331, 94 L. Ed. 884, 70 S. Ct. 724 (1950), and Trammel, 445 U.S. at 50) (internal quotation marks and ellipses omitted). "Exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974).

The Fifth Circuit views the role of courts in expanding privileges as a limited one. "Privileges are based upon the idea that certain societal values are more important than the search for truth. There is no question that the doctrine of privilege or immunity from testifying has been narrowly proscribed." In re Dinnan, 661 F.2d 426, 429 (5th Cir. Unit B Nov. 1981), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1314, 102 S. Ct. 2904 (1982). "Judge-made privileges have fallen into disfavor." Id. (footnote omitted). "There has been a notable hostility on the part of the judiciary to recognizing new privileges." Id. at 430 (footnote omitted). Privileges are strongly disfavored in federal practice. American Civil Liberties Union v. Finch, 638 F.2d 1336, 1344 (5th Cir. Unit A Mar. 1981). "While a number of new privileges have been established recently, they generally have been statutorily created." Dinnan, 661 F.2d at 429 (footnote omitted).

Sources

• Smith v. Smith, 154 F.R.D. 661 (N.D. Tex. 1994)