BILL NUMBER: SB 2061 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 29, 2002
INTRODUCED BY Senator Morrow
FEBRUARY 22, 2002
An act to amend Sections 912, 917, and 952 of the Evidence Code,
relating to electronic communications and evidentiary privileges.
LEGISLATIVE COUNSEL'S DIGEST
SB 2061, as amended, Morrow. Privilege: electronic
communication Evidentiary privileges .
Existing law specifies that the right of a person to claim an
evidentiary privilege is waived if the holder of the privilege
discloses a significant part of the privileged communication or has
consented to that disclosure, as specified.
This bill would add the domestic violence victim-counselor
privilege to the list of evidentiary privileges to which this
provision applies , and would require intentional disclosure
of a significant part of the privileged communication or any consent
to disclosure indicating intent to permit the disclosure .
The bill would also add a communication made in the course of a
sexual assault victim-counselor or domestic violence victim-counselor
relationship to the list of communications presumed to have been
made in confidence and therefore privileged.
Existing law provides that a communication between a client and
his or her lawyer is not deemed lacking in confidentiality solely
because the communication is transmitted by facsimile, cellular
telephone, or other electronic means between the client and his or
her lawyer.
This bill would delete that provision and add a provision
specifying that a communication between persons in a privileged
relationship does not lose its privileged character for the sole
reason that it is communicated by electronic means or because persons
involved in the delivery, facilitation, or storage of electronic
communication may have access to the content of the communication.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 912 of the Evidence Code is amended to read:
912. (a) Except as otherwise provided in this section, the right
of any person to claim a privilege provided by Section 954
(lawyer-client privilege), 980 (privilege for confidential marital
communications), 994 (physician-patient privilege), 1014
(psychotherapist-patient privilege), 1033 (privilege of penitent),
1034 (privilege of clergyman), 1035.8 (sexual assault
victim-counselor privilege), or 1037.5 (domestic violence
victim-counselor privilege) is waived with respect to a communication
protected by the privilege if any holder of the privilege, without
coercion, has intentionally disclosed a
significant part of the communication or has consented to disclosure
made by anyone. Consent to disclosure is manifested by any statement
or other conduct of the holder of the privilege indicating
intent to permit consent to the disclosure,
including failure to claim the privilege in any proceeding in which
the holder has the legal standing and opportunity to claim the
privilege.
(b) Where two or more persons are joint holders of a privilege
provided by Section 954 (lawyer-client privilege), 994
(physician-patient privilege), 1014 (psychotherapist-patient
privilege), 1035.8 (sexual assault victim-counselor privilege), or
1037.5 (domestic violence victim-counselor privilege), a waiver of
the right of a particular joint holder of the privilege to claim the
privilege does not affect the right of another joint holder to claim
the privilege. In the case of the privilege provided by Section 980
(privilege for confidential marital communications), a waiver of the
right of one spouse to claim the privilege does not affect the right
of the other spouse to claim the privilege.
(c) A disclosure that is itself privileged is not a waiver of any
privilege.
(d) A disclosure in confidence of a communication that is
protected by a privilege provided by Section 954 (lawyer-client
privilege), 994 (physician-patient privilege), 1014
(psychotherapist-patient privilege), 1035.8 (sexual assault
victim-counselor privilege), or 1037.5 (domestic violence
victim-counselor privilege), when disclosure is reasonably necessary
for the accomplishment of the purpose for which the lawyer,
physician, psychotherapist, sexual assault counselor, or domestic
violence counselor was consulted, is not a waiver of the privilege.
SEC. 2. Section 917 of the Evidence Code is amended to read:
917. (a) Whenever a privilege is claimed on the ground that the
matter sought to be disclosed is a communication made in confidence
in the course of the lawyer-client, physician-patient,
psychotherapist-patient, cleryman-penitent, husband-wife, sexual
assault victim-counselor, or domestic violence victim-counselor
relationship, the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden
of proof to establish that the communication was not confidential.
(b) A communication between persons in a relationship listed in
subdivision (a) does not lose its privileged character for the sole
reason that it is communicated by electronic means or because persons
involved in the delivery, facilitation, or storage of electronic
communication may have access to the content of the communication.
(c) For purposes of this section, "electronic" has the same
meaning provided in Section 1633.2 of the Civil Code.
SEC. 3. Section 952 of the Evidence Code is amended to read:
952. As used in this article, "confidential communication between
client and lawyer" means information transmitted between a client
and his or her lawyer in the course of that relationship and in
confidence by a means which, so far as the client is aware, discloses
the information to no third persons other than those who are present
to further the interest of the client in the consultation or those
to whom disclosure is reasonably necessary for the transmission of
the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the
advice given by the lawyer in the course of that relationship.