Article V. Privileges

219

Rule 501: Privileges Recognized Only as Provided.

Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to:

 (1) Refuse to be a witness;

 (2) Refuse to disclose any matter;

 (3) Refuse to produce any object or writing; or

 (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

[As amended by order filed December 14, 2009, effective July 1, 2010.]

Advisory Commission Comments [1999].

The following statutes and rules deal with some Tennessee privileges. They are provided for the convenience of the bench and bar. The relevant statutes and rules should be consulted to ensure accuracy and completeness. Many other statutes make certain documents confidential, but the Commission did not view such confidentiality concepts as synonymous with privilege theories.

T.C.A. § 55-10-114(b). ACCIDENT REPORT PRIVILEGE

 No report or information mentioned in this section [accident report made by "any person or by garages"] shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department [of safety] shall furnish upon demand of any party to such trial, or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department in compliance with law.

T.C.A. § 55-12-128. SAME, CIVIL SUITS

 Neither the reports required by this chapter [operator's report of financial responsibility], the action taken by the commissioner pursuant to this chapter, the findings of the commissioner upon which such action is based, nor the security filed as provided in this chapter shall be referred to in any way, nor constitute any evidence of the negligence or due care of either party at the trial of any action at law to recover damages.

T.C.A. § 62-1-116. ACCOUNTANT-CLIENT PRIVILEGE

 (a) Licensees shall not divulge, nor shall they in any manner be required to divulge, any information which is communicated to them or obtained by them by the reason of the confidential nature of their employment. Such information shall be deemed confidential; provided, that nothing herein shall be construed as prohibiting the disclosure of information required to be disclosed by the standards of the public accounting profession in reporting on the examination of financial statements or as prohibiting disclosures in investigations or proceedings under this chapter, in ethical investigations conducted by private professional organizations, or in the course of peer reviews, or to other persons active in the organization performing services for that client on a need to know basis or to persons in the entity who need this information for the sole purpose of assuring quality control. Disclosure of confidential information pursuant to this section shall not constitute a waiver of the confidential nature of such information for any other purpose.

 (b) Information derived as a result of such professional employment is deemed to be confidential, except that nothing in any section of this chapter shall be construed as modifying, changing or affecting the criminal or bankruptcy laws of this state or of the United States.

T.C.A. § 23-3-105. ATTORNEY-CLIENT PRIVILEGE

 No attorney, solicitor or counselor shall be permitted, in giving testimony against a client, or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person, during the pendency of the suit, before or afterwards, to the person's injury.

T.C.A. § 23-3-107. SAME

 Any attorney offering to give testimony in any of the cases provided for in T.C.A. §  23-3-105 ... shall be rejected by the court, and such attorney commits a Class C misdemeanor, for which, on conviction, the attorney shall also be stricken from the rolls, if a practicing attorney.

T.C.A. § 24-1-209. ATTORNEY-PRIVATE DETECTIVE OR INVESTIGATOR PRIVILEGE

 Communication between an attorney and a private detective or investigator hired by such attorney, while acting in their respective professional capacities shall be privileged communications.

T.C.A. § 37-1-614. CHILD SEXUAL ABUSE EXCEPTION TO PRIVILEGES

 The privileged quality of communication between husband and wife and between any professional person and the professional person's patient or client, and any other privileged communication except that between attorney and client, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any situation involving known or suspected child sexual abuse and shall not constitute grounds for failure to report as required by this part [T.C.A. § 37-1-605], failure to cooperate with the department in its activities pursuant to this part [T.C.A. § 37-1-611(b)], or failure to give evidence in any judicial proceeding relating to child sexual abuse.

T.C.A. § 24-1-206. CLERGY-PENITENT PRIVILEGE

 (a)(1) No minister of the gospel, no priest of the Catholic Church, no rector of the Episcopal Church, no ordained rabbi, and no regular minister of religion of any religious organization or denomination usually referred to as a church, over eighteen (18) years of age, shall be allowed or required in giving testimony as a witness in any litigation, to disclose any information communicated to that person in a confidential manner, properly entrusted to that person in that person's professional capacity, and necessary to enable that person to discharge the functions of such office according to the usual course of that person's practice or discipline, wherein such person so communicating such information about such person or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

 (2) It shall be the duty of the judge of the court wherein such litigation is pending, when such testimony as prohibited in this section is offered, to determine whether or not that person possesses the qualifications which prohibit that person from testifying to the communications sought to be proven by that person.

 (b) The prohibition of this section shall not apply to cases where the communicating party, or parties, waives the right so conferred by personal appearance in open court so declaring, or by an affidavit properly sworn to by such a one or ones, before some person authorized to administer oaths, and filed with the court wherein litigation is pending.

 (c) Nothing in this section shall modify or in any way change the law relative to "hearsay testimony."

 (d) Any minister of the gospel, priest of the Catholic Church, rector of the Episcopal Church, ordained rabbi, and any regular minister of religion of any religious organization or denomination usually referred to as a church, who violates the provisions of this section, commits a Class C misdemeanor.

T.C.A. § 24-1-211(f). DEAF PERSON-INTERPRETER PRIVILEGE

 Before a qualified interpreter will participate in any proceedings subsequent to an appointment under the provisions of this section, such interpreter shall make an oath or affirmation that such interpreter will make a true interpretation in an understandable manner to the deaf person for whom the interpreter is appointed and that such interpreter will interpret the statements of the deaf person desiring that statements be made, in the English language to the best of such interpreter's skill and judgment. The appointing authority shall provide recess periods as necessary for the interpreter when the interpreter so indicates. Any and all information that the interpreter gathers from the deaf person pertaining to any proceeding then pending shall at all times remain confidential and privileged, or on an equal basis with the attorney-client privilege, unless such deaf person desires that such information be communicated to other persons.

Tenn.S.Ct. Rule 9, § 27.1. DISCIPLINARY BOARD—COMPLAINANT PRIVILEGE

 Communications to the board, hearing committee members or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witnesses. Members of the board, hearing committee members, disciplinary counsel and staff shall be immune from civil suit for any conduct in the course of their official duties.

T.C.A. § 24-7-114. LEGISLATIVE COMMITTEE-WITNESS PRIVILEGE

 From and after February 20, 1959, without the consent of such witness there shall not be admitted into evidence in any civil proceeding in the courts of this state the testimony of a witness given before any committee of the general assembly of the State of Tennessee, provided such testimony when given was pertinent to the inquiry of such committee or responsive to a question from such committee.

T.C.A. § 24-1-208. NEWS REPORTER'S PRIVILEGE

 (a) A person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast, shall not be required by a court, a grand jury, the general assembly, or any administrative body, to disclose before the general assembly or any Tennessee court, grand jury, agency, department, or commission any information or the source of any information procured for publication or broadcast.

 (b) Subsection (a) shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information.

 (c)(1) Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection. Such application shall be made to the judge of the court having jurisdiction over the hearing, action, or other proceeding in which the information sought is pending.

 (2) The application shall be granted only if the court after hearing the parties determines that the person seeking the information has shown by clear and convincing evidence that:

  (A) There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;

  (B) The person has demonstrated that the information sought cannot reasonably be obtained by alternative means; and

  (C) The person has demonstrated a compelling and overriding public interest of the people of the State of Tennessee in the information.

 (3)(A) Any order of the trial court may be appealed to the court of appeals in the same manner as other civil cases. The court of appeals shall make an independent determination of the applicability of the standards in this subsection to the facts in the record and shall not accord a presumption of correctness to the trial court's findings.

  (B) The execution of or any proceeding to enforce a judgment divesting the protection of this section shall be stayed pending appeal upon the timely filing of a notice of appeal in accordance with Rule 3 of the Tennessee Rules of Civil Procedure, and the appeal shall be expedited upon the docket of the court of appeals upon the application of either party.

  (C) Any order of the court of appeals may be appealed to the supreme court of Tennessee as provided by law.

T.C.A. §63-22-114. PROFESSIONAL COUNSELOR/MARITAL AND FAMILY THERAPIST/CLINICAL PASTORAL THERAPIST–CLIENT PRIVILEGE

The confidential relations and communications between licensed marital and family therapists, licensed professional counselors or certified clinical pastoral therapists and clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this part shall be construed to require any such privileged communication to be disclosed. However, nothing contained within this section shall be construed to prevent disclosures of confidential communications in proceedings arising under title 37, chapter 1, part 4 concerning mandatory child abuse reports.

T.C.A. § 24-1-207. PSYCHIATRIST-PATIENT PRIVILEGE

 (a) Communications between a patient and a licensed physician when practicing as a psychiatrist in the course of and in connection with a therapeutic counseling relationship regardless of whether the therapy is individual, joint, or group, are privileged in proceedings before judicial and quasi-judicial tribunals. Neither the psychiatrist nor any member of the staff may testify or be compelled to testify as to such communications or otherwise reveal them in such proceedings without consent of the patient except:

 (1) In proceedings in which the patient raises the issue of the patient's mental or emotional condition;

 (2) In proceedings for which the psychiatrist was ordered by the tribunal to examine the patient if the patient was advised that communications to the psychiatrist would not be privileged, but testimony as to the communications is admissible only on issues involving the patient's mental or emotional condition; and

 (3) In proceedings to involuntarily hospitalize the patient under § 33-6-103 or § 33-6-104, if the psychiatrist decides that the patient is in need of care and treatment in a residential facility. Unless otherwise ordered by the court, the exception is limited to disclosures necessary to establish that the patient poses a substantial likelihood of serious harm requiring involuntary hospitalization under § 33-6-103 or § 33-6-104.

 (b) When personally identifiable patient information is to be disclosed in a judicial or quasi-judicial proceeding or any other public proceeding, the authority conducting the proceeding shall take reasonable steps to prevent unnecessary exposure of such information to the public and to further this section's policy of protecting the right of privacy. Such steps may include screening of questions in pre-hearing conferences and in camera inspection of papers.

 (c)(1) Privileged communications between a patient and a licensed physician when practicing as a psychiatrist in the course of and in connection with a therapeutic counseling relationship, regardless of whether the therapy is individual, joint, or group, may be disclosed without consent of the patient if:

  (A) Such patient has made an actual threat to physically harm an identifiable victim or victims; and

  (B) The treating psychiatrist makes a clinical judgment that the patient has the apparent capability to commit such an act and that it is more likely than not that in the near future the patient will carry out the threat.

 (2) The psychiatrist may disclose patient communications to the extent necessary to warn or protect any potential victim. No civil or criminal action shall be instituted, nor shall liability be imposed due to the disclosure of otherwise confidential communications by a psychiatrist pursuant to this subsection.

T.C.A. § 63-11-213. PSYCHOLOGIST/PSYCHOLOGICAL EXAMINER-CLIENT PRIVILEGE

 For the purposes of this chapter, the confidential relations and communications between licensed psychologist or psychological examiner and client are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.

 T.C.A. § 63-23-107. SOCIAL WORKER-CLIENT PRIVILEGE

 (a) The confidential relations and communications between a client and a certified master social worker, or an independent practitioner of social work holding a valid certificate of registration, as defined in this chapter, are placed upon the same basis as those provided by law between licensed psychologists and psychological examiners and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.

 (b) Nothing contained within this section shall be construed to prevent disclosure of confidential communications in proceedings arising under title 37, chapter 1, part 4 concerning mandatory child abuse reports.

T.C.A. § 24-1-201. SPOUSAL PRIVILEGE 

(a) In either a civil or criminal proceeding, no married person has privilege to refuse to take the witness stand solely because that person's spouse is a party to the proceeding. 

(b) In a civil proceeding, confidential communications between married persons are privileged and inadmissible if either spouse objects. This communications privilege shall not apply to proceedings between spouses or to proceedings concerning abuse of one (1) of the spouses or abuse of a minor in the custody of or under the dominion and control of either spouse, including, but not limited to, proceedings arising under title 36, chapter 1, part 1; title 37, chapter 1, parts 1, 4 and 6; title 37, chapter 2, part 4; and title 71, chapter 6, part 1. This confidential communications privilege shall not apply to any insured's obligations under a contract of insurance in civil proceedings. 

(c) (1) In a criminal proceeding a marital confidential communication shall be privileged if: 

(A) The communications originated in a confidence that they will not be disclosed; 

(B) The element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties; 

(C) The relation must be one which, in the opinion of the community, ought to be sedulously fostered; and 

(D) The injury to the relation by disclosure of the communications outweighs the benefit gained for the correct disposal of litigation. 

(2) Upon a finding that a marital communication is privileged, it shall be inadmissible if either spouse objects. Such communication privileges shall not apply to proceedings concerning abuse of one (1) of the spouses or abuse of a minor in the custody of or under the dominion and control of either spouse, including, but not limited to proceedings arising under title 37, chapter 1, parts 1 and 4; title 37, chapter 2, part 4; and title 71, chapter 6, part 1.

Advisory Commission Comments [2003].

Tenn. Code Ann. § 33-3-114. EXCEPTIONS TO EVIDENTIARY PRIVILEGE OF MENTAL HEALTH PROFESSIONALS

Notwithstanding any evidentiary privilege a qualified mental health professional may have, including §§ 24-1-207, 63-11-213, 63-22-114, and 63-23-107, the qualified mental health professional may be compelled to testify in: 

(1) Judicial proceedings under this title to commit a person with mental illness, serious emotional disturbance, or developmental disability to treatment if the qualified mental health professional decides that the service recipient is in need of compulsory care and treatment; 

(2) In proceedings for which the qualified mental health professional was ordered by the court to examine the service recipient if the service recipient was advised that communications to the qualified mental health professional would not be privileged.

Advisory Commission Comments [2010].

Delete from the 1999 comment the reference to Tenn. R. Crim. P. 6(k), which is not really a privilege.

Advisory Commission Comments [2012].

The Advisory Commission Comment [1999] was amended by deleting a reference to Tenn. Code Ann. § 63-6-219(e), which was repealed by Chapter 67, Tennessee Public Acts of 2011. In addition to repealing Tenn. Code Ann. § 63-6-219, Chapter 67 enacted the following privilege (using identical language in two separate statutes):

Tenn. Code Ann. §§ 63-1-150(d)(1) and 68-11-272(c)(1). QUALITY IMPROVEMENT COMMITTEE PRIVILEGE

Records of a QIC [Quality Improvement Committee] and testimony or statements by a healthcare organization's officers or directors, trustees, healthcare providers, administrative staff, employees or other committee members or attendees relating to activities of the QIC shall be confidential and privileged and shall be protected from direct or indirect means of discovery, subpoena or admission into evidence in any judicial or administrative proceeding. Any person who supplies information, testifies or makes statements as part of a QIC may not be required to provide information as to the information, testimony or statements provided to or made before such a committee or opinions formed by such person as a result of committee participation.

But see Tenn. Code Ann. § 63-1-150(a) (listing statutes to which Section 63-1-150 does not apply).

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