BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
SB 2061 S
Senator Morrow B
As Amended April 29, 2002
Hearing Date: May 7, 2002 2
Evidence Code 0
CJW:sr 6
1
SUBJECT
Privilege: Electronic Communications
DESCRIPTION
This bill would provide that (1) a privileged communication
does not lose its privileged status simply because it is
transmitted electronically, and (2) the statutory
presumption of confidentiality and statutory waiver
requirements apply to newly created privileges.
BACKGROUND
In 1996, the California Law Revision Commission reviewed
the Evidence Code to determine whether existing provisions
were satisfactory in light of evolving technologies
affecting written and oral communications. This review
resulted in 1998 legislation repealing the Best Evidence
Rule and replacing it with the Secondary Evidence Rule ( see
Evid. Code Sec. 1521).
The Commission now sponsors this bill, recommending that
the Evidence Code provisions governing privileged
communications be updated and standardized in addressing
advanced technologies. The Commission also recommends
updating the provisions defining the waivers and
presumptions related to privileged communications to
include reference to recently created privileges.
CHANGES TO EXISTING LAW
(more)
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1. Existing law provides that a lawyer-client
communication is not deemed lacking in confidentiality
solely because it was transmitted by facsimile, cellular
telephone, or other electronic means. [Evid. Code Sec.
952.]
This bill would delete this provision, and instead would
provide that a communication between parties to any
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.
This bill would define "electronic" as having the meaning
provided in Section 1633.2 of the Civil Code (which is
"relating to technology having electrical, digital,
magnetic, wireless, optical, electromagnetic, or similar
capabilities").
2. Existing law provides that communications made in the
context of specified relationships (husband-wife,
lawyer-client, physician-patient, clergy member-penitent,
sexual assault victim-counselor) are privileged,
entitling the holder of the privilege to refuse to
disclose, and to prevent another from disclosing, the
communication. [Evid. Code Secs. 954, 980, 994, 1014,
1033-34, 1035.8.]
Existing law further provides that the privilege is
waived if the holder of the privilege, without coercion,
has disclosed or consented to the disclosure of all or a
significant part of the communication at issue, or fails
to claim the privilege in any proceeding in which the
holder has the legal standing and opportunity to claim
it. [Evid. Code Sec. 912.]
Existing law further provides that the privilege is not
waived when the disclosure is reasonably necessary for
the accomplishment of the purpose for which the
physician, psychotherapist, lawyer, or sexual assault
counselor was consulted. [ Id .]
Existing law recently has extended the right to claim a
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privilege against disclosure to communications between
domestic violence victims and counselors. [Evid. Code
Sec. 1037.5.]
This bill would add the domestic violence
victim-counselor privilege to those listed in Section
912, governing waiver of the privilege.
3. Existing law provides that whenever a privilege is
claimed on the ground that the communication at issue was
made in confidence in the course of the husband-wife,
lawyer-client, physician-patient,
psychotherapist-patient, or clergyman-penitent
relationship, the communication is presumed to be
confidential and the opponent of the claim of privilege
has the burden of proof to establish that communication
was not confidential. [Evid. Code Sec. 917.]
This bill would provide that the presumption of
confidentiality also extends to communications claimed
under the sexual assault victim-counselor and domestic
violence victim-counselor relationship.
COMMENT
1. Stated need for legislation
Current law addresses the electronic transmission of
privileged communications only in the context of the
lawyer-client relationship. Section 952 of the Evidence
Code provides that a lawyer-client communication "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."
The sponsor notes that the narrow focus of this provision
may be read to deny the confidentiality of other
privileged communications made by electronic means.
Further, the provision's reference to specified
technologies is overly specific, easily outdated, and
makes no reference to the fact that electronic storage
mechanisms may grant storage providers with access to
electronic communications, threatening their privileged
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character.
To address this problem, this bill would delete the
referenced provision of Section 952 and instead provide
that no privileged communication shall lose its
privileged character solely because it is communicated by
"electronic means" (using the Civil Code's broad and
flexible definition of "electronic"), or because persons
involved in the delivery or storage of the communication
may have access to the communication.
The sponsor's review of the Evidence Code sections
relating to privileged communications also revealed that
some provisions had not been updated to reflect the most
recently created privileges between sexual assault and
domestic violence victims and their counselors. This
bill would update those sections to include these newly
created privileges.
Support: None Known
Opposition: None Known
HISTORY
Source: California Law Revision Commission
Related Pending Legislation: None Known
Prior Legislation: SB 177 (Kopp, Ch. 100, Stats. of 1998)
repealed Best Evidence Rule, which allowed
only the original of a writing to be
introduced to proved its contents, and
enacted the Secondary Evidence Rule, allowing
contents of a writing to be proved by
original or secondary evidence of that
writing.
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