BILL ANALYSIS
SB 2061
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Date of Hearing: June 4, 2002
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
SB 2061 (Morrow) - As Amended: April 29, 2002
PROPOSED CONSENT
SENATE VOTE : 38-0
SUBJECT : PRIVILEGE: ELECTRONIC COMMUNICATIONS
KEY ISSUES :
1)SHOULD A PRIVILEGED COMMUNICATION NOT LOSE ITS PRIVILEGED
STATUS SOLELY BY REASON OF BEING COMMUNICATED BY ELECTRONIC
MEANS?
2)SHOULD A PRESUMPTION OF CONFIDENTIALITY ATTACH TO
COMMUNICATIONS CLAIMED TO BE PRIVILEGED UNDER THE SEXUAL
ASSAULT VICTIM-COUNSELOR RELATIONSHIP AND THE DOMESTIC
VIOLENCE VICTIM-COUNSELOR RELATIONSHIP, AS IT DOES TO
COMMUNICATIONS IN THE COURSE OF OTHER SPECIFIED RELATIONSHIPS?
SYNOPSIS
This non-controversial bill, sponsored by the California Law
Revision Commission, is intended to create consistency in
provisions governing the waivers and presumptions relating to
privileged communications. It clarifies that communication by
electronic means is not sufficient by itself to constitute a
waiver of privilege even if persons involved in the delivery,
facilitation or storage of the electronic message may have
access to the content of a communication. It adds the domestic
violence victim-counselor privilege to those covered under
existing provisions regarding waiver of privilege. It extends
the presumption of confidentiality attached to communications in
certain relationships under existing law to communications made
in the sexual assault victim-counselor or domestic violence
victim-counselor relationship. The bill will ensure that clear
and consistent rules apply to all potentially privileged
communications, regardless of what type of relationship gives
rise to the potential privilege.
SUMMARY : Creates consistency in provisions regarding
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privileged communications. Specifically, this bill :
1)Adds the domestic violence victim-counselor privilege to the
provision governing waiver of privilege due to disclosure of a
communication.
2)Adds the sexual assault victim-counselor and the domestic
violence victim-counselor communications to those
communications presumed to be confidential for the purposes of
determining whether the communications are privileged.
3)Provides that communications in a lawyer-client,
physician-patient, psychotherapist-patient, clergyman-patient,
husband-wife, sexual assault victim-counselor or domestic
violence victim-counselor 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.
EXISTING LAW :
1)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.
(Evidence Code section 952. All further references are to
this code unless otherwise noted.)
2)Provides that communications made in the context of a
lawyer-client, physician-patient, psychotherapist-patient,
clergyman-patient, husband-wife, sexual assault
victim-counselor, or domestic violence victim-counselor
relationship are privileged, entitling the holder of the
privilege to refuse to disclose and to prevent another from
disclosing the communication. (Sections 954, 980, 994, 1014,
1033-34, 1035.8 and 1037.5.)
3)Provides that a 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. (Section 912.)
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4)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. (Section
917.)
FISCAL EFFECT : The bill as currently in print is keyed
non-fiscal.
COMMENTS : This bill is sponsored by the California Law
Revision Commission to create consistency in the Evidence Code
provisions governing privileged communications. Existing 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." SB 2061 deletes this
existing provision, instead creating a provision that applies in
all types of relationships giving rise to privilege. The bill
provides that no privileged communication shall lose its
privileged character solely because it is communicated by
electronic means or because persons involved in the delivery or
storage of the communication may have access to the
communication.
The bill further updates section 912, governing waiver of
privilege due to disclosure of communication, to include
communications made in the domestic violence victim-counselor
relationship. It updates section 917, creating a presumption
that communications made in specified relationships are
privileged, to include the sexual assault victim-counselor
relationship and the domestic violence victim-counselor
relationship. These changes ensure that the law regarding
privileged communications is consistent regardless of what
particular privilege is at issue.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Law Revision Commission (sponsor)
Family Law Section of the State Bar
Opposition
None on file.
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334