Developing Issue: Attachments to Privileged Emails Not Necessarily Privileged Reply

An issue that has historically received little attention in privilege law is whether the attorney–client privilege protects from discovery documents sent as email attachments where the email communication itself is privileged.  This issue, however, is receiving increasing attention and lawyers should not assume that the privilege automatically covers the attachment just because it covers the email.

The attorney–client privilege protects email communications between a client and his attorney, including communications between an employee and his company’s attorney, when the email is confidential when sent, kept confidential thereafter, and is for purposes of soliciting or receiving legal advice. Many lawyers, outside counsel and in-house counsel alike, assume that an email meetinemail attachmentg these criteria means that attachments to the email necessarily receive the same protection.

Courts are increasingly challenging that assumption.  Federal and state courts are looking beyond the email to determine whether the attachment independently meets the criteria to support application of the attorney–client privilege.  Courts have held that attachments to emails “must independently earn that protection.”  AM General Holdings, LLC v. The Renco Group, LLC, 2013 WL 1668627 (Del. Ch. Ct. Apr. 18, 2013).  They recognize with increasing regularity that email attachments can be produced independently of the cover email.  Muro v. Target Corp., 2006 WL 3422181 (N.D. Ill. Nov. 28, 2006).

Similarly, courts find that sending email communications to third parties not only waives the privilege with respect to the email, but also to any attachment to the email.  United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002).

In Kleen Products, LLC v. International Paper, 2014 WL 6475558 (Nov. 12, 2014), which was the subject of an earlier post concerning the in-house attorney–client privilege, the court held that the privilege did not attach to a PowerPoint presentation sent for review to the company’s in-house attorney.  In so holding, the court stated:

Attachments which do not, by their content, fall within the realm of the attorney–client privilege cannot become privileged by merely attaching them to a communication with the attorney.

The take-away here is that courts are increasingly scrutinizing attachments to determine whether they warrant privilege protection independent of the privileged-nature of the cover email.  Lawyers, particularly in-house lawyers, should heed this increasing scrutiny and ensure that employees sending attachments via email establish and maintain the privilege over the attachment just as they would over the email.

Improving the chances of gaining privilege protection includes, by way of example only, labeling the attachment as “Protected by the Attorney–Client Privilege” and “Confidential,” stating that the document is sent for purposes of seeking legal advice, and stating that any recipient should not distribute attachment further without counsel’s authorization.

What’s Mine is Not Yours: Former Officers and the Corporation’s Attorney-Client Privilege Reply

Many issues arise when an officer or director involuntarily leaves a company.  Companies are quick to enforce non-compete agreements and protect trade secrets against the former officer, but often do not consider protection of legal communications in which the officer participated.

A former officer inherently maintains insider information, including the contents of privileged emails and other communications that he created or Firedreceived.  And he may personally possess this information because he extracted them prior to leaving or otherwise had them in his personal possession during the normal course of business.

But in post-departure litigation between the officer and the company, the question arises whether the corporation may prevent the use of privileged, officer-created communications or whether the privilege equally belongs to the former officer turned adversary.

In my recent article, What’s Mine is Not Yours: Former Officers and Directors and the Corporation’s Attorney-Client Privilege, co-written with Kristi Wilcox Arth, I discuss that courts take two approaches to this issue: the collective-corporate-client approach and the entity-as-client approach.  The approach a court takes will determine whether the corporation may prevent a former officer from using privileged communications.

This article, available here, was originally published in The Corporate Counselor, and I thank this publication for permission to reprint the article on my blog.  The article was later re-published in The Association of Corporate Counsel Newsstand and Corporate Counsel.  And for a specific discussion of a court addressing these issues, see my prior post “Who’s the Client? Former CEO Not Entitled to Company’s Privileged Documents”.

I hope you find the article informative and helpful.

Judge Lamberth Finds No Waiver Where Party Produces Privileged Documents Pursuant to a Subpoena Reply

Judge Royce C.  Lamberth, who oversaw the Foreign Intelligence Surveillance Court after September 11, 2001, issued a point-blank ruling that a government agency’s disclosure of privileged information to the U.S. Senate’s Permanent Subcommittee on Investigations did not constitute a waiver of the attorney–client privilege or deliberative-process privilege.  Spears v. First American eAppraiseIT, 2014 WL 6783737 (D.D.C. Dec. 2, 2014).  You may read Subpoenathe decision here.

The U.S. Senate’s Permanent Subcommittee on Investigations issued a report in 2011 on the 2007–2008 Wall Street financial collapse.  The report included references and summaries of documents that the Office of the Comptroller of Currency provided to the Subcommittee under seal pursuant to a subpoena duces tecum.

In a subsequent civil lawsuit against First American eAppraiseIT, the plaintiffs subpoenaed the OCC requesting that it produce the three documents behind the summaries that the Subcommittee publicly disclosed in its report.  The documents were a memorandum from OCC (then Office of Thrift Supervision) attorneys to its Chief Counsel, OCC enforcement attorney’s notes containing legal analysis of the investigation of Washington Mutual Bank, and a memorandum of an OCC Regional Appraisal to OCC Enforcement Counsel.

The OCC objected on grounds that the attorney–client privilege and the deliberative-process privilege protected the documents from disclosure.  The plaintiffs agreed with the privilege assertions, but stated that the OCC’s disclosure of the documents to the Subcommittee—and the Subcommittee’s subsequent disclosure in its public report—constituted privilege waiver.

Judge Lamberth, however, rejected these arguments.  He ruled that the OCC had not waived the privileges because the Subcommittee, and not the OCC, had publicly disclosed the documents’ content.  He ruled that the OCC’s disclosure of documents to the Subcommittee was not tantamount to the OCC publicly disclosing the documents, noting that “OCC is not responsible for” the Subcommittee’s report.

Judge Lamberth also held that OCC did not waive the privileges by producing the documents to the Subcommittee because it did so in response to a subpoena.  He held that “documents produced pursuant to a subpoena are not voluntarily disclosed,” noting that “[t]here is less reason to find waiver when documents have been provided pursuant to a subpoena, and provided under seal.”

PoP Analysis.  Judge Lamberth distinguished each case on which the plaintiffs relied in asserting their privilege-waiver argument, but provided little case-law support for his rulings that producing documents pursuant to subpoena does not constitute privilege waiver or that a government branch’s disclosure does not equate to public disclosure by the party originally producing the documents.  Yet, for lawyers looking for authority supporting the argument that producing documents pursuant to a subpoena does not constitute voluntary disclosure and privilege waiver, Judge Lamberth provides it here.

Court Takes Narrow View of Privilege Where General Counsel Has Legal and Operational Titles 1

How many in-house lawyers have non-lawyer titles, for example, Chief Legal Officer and Secretary or General Counsel and Vice-President?  The multi-titled in-house counsel is prevalent in today’s corporate world but, as one federal court bluntly held, an in-house lawyer with legal and non-legal roles receives a narrow view of her putatively privileged communications.

In Kleen Products, LLC v. International Paper, 2014 WL 6475558 (N.D. Ill. Nov. 12, 2014), which you may access here, a defendant sought to cloak with privilege virtually all communications that he sent or on which he was the primary recipient or was carbon-copied.  Finding this position “troubling,” the court determined that “numerous allegedly privileged emails … contain nothing more than mundane chatter about routiwearing_two_hats_500_clr_12985ne business matters.”

Noting that copying an in-house lawyer “on a given communication does not automatically transform the contents of that message into a privileged request for legal advice,” the court found significant that the company’s in-house lawyer held the title of General Counsel, Chief Administrative Officer, and Senior Vice-President and Secretary.

The court agreed that “drawing a distinction between business and legal advice is not always easy,” but took a decidedly narrow view of the in-house attorney–client privilege where communications involve legal and business aspects.  Regarding the position-title issue, the court stated that, “[w]hen in-house counsel occupies both a legal and operational role, the test for determining if a document is privileged is whether the predominant purpose of the communication was to render or solicit legal advice.” And if legal advice is incidental to business advice, the privilege does not apply.

Importantly, the court held that when an employee prepares a document for simultaneous review by lawyers and non-lawyers seeking business and legal advice, the document is “not primarily legal in nature and is therefore not privileged.”  In other words, “[i]t is improper to infer as a blanket matter that any email asking for ‘comments’ that copies in-house counsel along with several other high level managers automatically is a request for legal review.”

PoP Analysis.  The court here took a strict and narrow view of the in-house attorney–client privilege, particularly in its application of the primary purpose standard.  As discussed in this prior post, courts generally apply two standards in assessing whether a corporate communication is more business or more legal related—the “because of” standard and the “primary purpose” standard.

While the primary purpose standard is the narrower of the two, the court here seems to have taken the test to an even higher level of scrutiny, particularly with its comment that a document sent for simultaneous business and legal review is automatically not privileged.

In the end, a significant lesson here is that not only do in-house lawyers receive heightened scrutiny of their communications, but even more scrutiny when the in-house lawyer carries business-related position titles.  And at the risk of stating the obvious, those in-house lawyers with additional titles should heed this case and take even greater precautions to establish and maintain the privilege over their communications.

Communications Between a Trade Association’s In-House Counsel and Its Members—Privileged? Reply

Trade associations’ in-house lawyers often consult with the associations’ members and members’ counsel on legal issues.  The question arises whether the attorney–client privilege protects these communications from discovery.  A Texas appellate court recently said “no” and ordered a trade association’s lawyer to answer deposition questions about her conversations with a member’s lawyer.  In re Baytown Nissan, Inc., 2014 WL 6388414 (Tex. Ct. App. Nov. 7, 2014).  You may review the decisio31998746_sn here.


A Nissan dealer sought to sell its assets to the plaintiff, BSAG, Inc., but Nissan North America exercised its right-of-first-refusal to purchase the assets.  During the negotiations, the dealer’s lawyer communicated with the Texas Automobile Dealer Association’s General Counsel.  BSAG deposed the dealer’s lawyer and TADA’s in-house counsel during subsequent litigation, and inquired about those communications.

The dealer argued that the attorney–client privilege protected these communications from discovery, but the trial court disagreed forcing the dealer to seek a writ of mandamus.

No Blanket Privilege

Despite recognizing that a trade association’s counsel regularly consults with the association’s members, the appellate court declined to adopt a “blanket rule of privilege” between the two. Instead, the court preferred a case-by-case analysis to determine whether an attorney–client relationship actually existed between the member (or its counsel) and the association’s counsel.

No Attorney–Client Relationship

The court of appeals found that Texas’s attorney–client privilege statute, Tex. R. Evid. 503, requires an actual attorney–client relationship between TADA’s attorney and its member. Because TADA’s general counsel was not the dealer’s lawyer, the court refused the dealer’s argument that the TADA lawyer’s status as an attorney—even if not the member’s attorney—met the statutory requirement.

Implied Relationship?

A court may imply an attorney–client relationship, based on the parties’ conduct, even without an express agreement.  Here, the dealer argued that an implied attorney–client relationship existed because TADA’s general counsel provides legal services to TADA’s membership.

With no per se privilege between an association’s counsel and its members, the court reviewed “objective evidence” to determine whether an implied attorney–client relationship existed.  The court found no relationship, largely due to the absence of several factors:

(1) the dealer’s counsel did not ask TADA’s counsel to provide legal services to the dealer; (2) no engagement letter existed; (3) the dealer’s attorney did not express belief that TADA’s counsel was also acting as counsel to the dealer; (4) neither lawyer provided assurances that the conversation was confidential and privileged; and (5) TADA’s counsel did not run a conflicts check.

For these reasons, the court rejected the implied attorney–client relationship argument and, correspondingly, the existence of a privilege protecting the lawyers’ communications.

Work-Product Doctrine?

Despite the lack of a privilege, the dealer’s counsel successfully invoked the work-product doctrine.  The court found that the dealer’s counsel engaged in the conversation with TADA’s general counsel as part of his investigation into Nissan’s right-of-first-refusal and the overall asset sale.  And because the deposition questions called for counsel’s thoughts and mental impressions, the work-product doctrine precluded any further deposition questioning.

But the work-product doctrine did not prevent TADA’s counsel from testifying about the conversation.  The court ruled that the doctrine was inapplicable due to the lack of any type of relationship beyond the association–member context.  The deposition of TADA’s counsel, therefore, moved forward.

PoP Analysis

It appears that the dealer’s counsel and TADA’s counsel were not on the same page.  Dealer’s counsel believed the privilege covered the conversation, but TADA’s counsel contradicted that belief, stating that dealer’s counsel never asked her to enter into an attorney–client relationship or for assurance that the conversation was confidential and privileged.  You may read the TADA lawyer’s affidavit here.

Trade associations and their members should take heed of this case, particularly the “no blanket privilege” ruling.  Lawyers for trade associations and their members must take certain steps to improve the chances of successfully invoking the privilege.

These steps include formalizing an attorney–client relationship in writing, if appropriate.  Even if the engagement is an uncompensated one, formalizing the relationship will show a reviewing court of the parties’ intent.

And the lawyers should conduct their interactions in a way that shows intent to establish and maintain the privilege.  Written communications should include “confidential & privileged” designations, contain legal-related comments, and be kept confidential.  For more tips, see my article, A Higher Standard–Claiming Attorney-Client Privilege is Tougher for In-House Counsel.

Will You (Quickly) Marry Me? Jailhouse Marriage Proposal to Secure Spousal Privilege is Relevant Evidence Reply

The marital communications privilege protects from disclosure information privately disclosed between a married couple in confidence of the marital Wedding-Prison-Jail-1-300x199relationship.  A key phrase in this definition is “married couple” or a state-law equivalent, and one criminal’s attempt to silence his girlfriend through a jailhouse marriage proposal backfired in a major way.

The FBI arrested Donald J. Peel after he took a disabled female minor on a five-state sojourn that included illegal drugs and sex.  The government recorded Peel’s conversations with Nicole Gorski, his so-called girlfriend, conducted while Peel was in jail awaiting trial for transporting a minor with intent to engage in sexual activity.

In these conversations, Peel told Gorski that “you might have the right to marital privilege” and urged her to seek a lawyer about securing a Domestic Partnership Declaration under California Family Code § 297-297.5.  Peel needed Gorski to fall within the martial communications privilege so that she could refuse to provide trial testimony, because, as Peel said, “without you they ain’t got nothin’.”

Peel’s counsel moved under FRE 403 to exclude Peel’s conversations with Gorski about invoking the marital communications privilege.  The court, however, rejected this preclusion attempt, ruling that Peel’s effort to orchestrate the suppression of Gorski’s testimony was relevant to the government’s “consciousness of guilt” proposition.

While courts may exclude evidence of one spouse urging the other spouse to invoke the marital communications privilege, in this case Peel was asking his girlfriend “to marry him to create a privilege that did not already exist.”  The court rejected Peel’s arguments and admitted into evidence all of Peel’s conversations.

And without the marital communications privilege, Gorski’s testimony helped lead to a guilty verdict.   You may read the court’s opinion hereUnited States v. Peel, 2014 WL 5817259 (E.D. Cal. Nov. 7, 2014).

No word whether Gorski would have accepted the proposal, but she will now have 10+ years to think about it.

Does Assertion of § 260 Good-Faith Defense in FLSA Action Waive the Attorney-Client Privilege? Reply

In a FLSA collective action against PetSmart, a Delaware federal magistrate judge ruled that PetSmart’s assertion of the good-faith affirmative defense, authorized by 29 USC § 260, did not constitute waiver of the attorney-client privilege.  The judge drew a distinction between PetSmart’s state-of-mind and advice-of-counsel assertions, and issued the ruling even though PetSmart’s decision-maker
flipboard_discussion_text_10528made the exemption decision after “conversations with the legal department.”  McKee v. PetSmart, Inc., 2014 WL 5293703 (D. Del. Oct. 15, 2014). You may read the court’s decision here.

FLSA and the Good-Faith Defense

In a FLSA, wage-and-hour action, the plaintiffs may recover liquidated damages if the employer willfully misclassified employees as exempt from overtime wages.  29  USC § 216.  An employer may avoid these damages, however, if it proves that it had a reasonable basis for making the decision, even if the decision proved inaccurate. Employers routinely assert this good-faith defense in FLSA actions.

Privilege Waiver?

In McKee, the plaintiffs (operations managers at PetSmart) took the deposition of PetSmart’s director of compensation and asked him the bases for his exemption decision.  The director testified that he relied on store visits and conversations with various PetSmart employees, including its legal department.  But PetSmart’s counsel objected on privilege grounds and instructed the director not to answer questions regarding communications with the legal department about his exemption decision.

Plaintiffs’ counsel specifically asked the director the basis for PetSmart’s good-faith defense, and the director stated that he relied on his due diligence, which included discussions with operations managers and field managers.  The director never said he relied on advice of PetSmart’s in-house lawyers.  You may read the director’s testimony and counsel’s objections here.

State-of-Mind v. Advice-of-Counsel

The magistrate judge denied plaintiffs’ attempt to compel the director to divulge his conversations with the legal department.   The court drew a fine-line distinction between the director’s state-of-mind in making the exemption decision and his (lack of) reliance on advice-of-counsel.  Citing Third Circuit precedent, the court noted that PetSmart did not lose the privilege’s protection simply because its director of compensation’s state-of-mind was at issue.  See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (CTA3 1994).

The judge, however, seemed willing to find waiver if the evidence showed that the director relied on advice-of-counsel, stating that such evidence would “create a path to disclosure of privileged communications, which plaintiffs find vital to their case on the issue of willfulness.”  In this regard, the court ordered PetSmart to produce a PowerPoint presentation on exempt status that the director reviewed.

But the judge did not mention that the director testified in a prior deposition that PetSmart did rely on the advice of its in-house lawyers in determining the employees’ exempt status.  You may read this testimony here and determine whether you agree with the judge’s conclusions whether PetSmart relied on the advice of its counsel in making the exemption decision.

District Court Review

On October 29, 2014, the plaintiffs filed objections to the magistrate judge’s opinion, taking issue with the judge’s factual and legal support for the decision.  You may read the objections here.

PoP Analysis

As it currently stands, the McKee case provides guidance for counsel seeking to penetrate or defend the attorney-client privilege when the § 260 good-faith defense is at issue in a FLSA case.  If the exemption decision-maker testifies that he relied on legal counsel in making the decision, the the advice-of-counsel waiver will allow disclosure of privileged communications.  On the other hand, if the decision-maker does not rely on counsel’s advice, even if he communicated with counsel, then his state-of-mind is all that is at issue, and, according to the magistrate judge, there is no state-of-mind privilege waiver in the Third Circuit.

We await the district court’s decision.

Antitrust Compliance Policy Not Privileged Reply

In a matter of first impression in the Third Circuit, amidst a dearth of cases elsewhere, a court ruled that the attorney-client privilege did not protect from disclosure a company’scompliance training antitrust compliance
policy.  This ruling came even though in-house and outside counsel drafted the policy, the policy discussed legal compliance, the company did not distribute the policy outside of corporate employees.  In re Domestic Drywall Antitrust Litigation, 2014 WL 5090032 (E.D. Pa. Oct. 9, 2014). You may access the ruling here.

In this antitrust MDL case, the plaintiff sought production of CertainTeed Gypsum, Inc.’s antitrust compliance policy.  CertainTeed refused, arguing with some confidence that the policy represented communications between lawyer (outside/in-house counsel) and client (employees), and that the company kept the policy confidential by distributing it only to company employees.

Business Policy or Legal Policy?

But the court construed the privilege narrowly, limiting it to legal advice that resulted in a company decision.  The court noted that CertainTeed’s antitrust compliance policy did not contain any specific legal advice (just general legal compliance) and was “primarily a business policy” “more akin to a reference or instructional guide.”


CertainTeed argued that it maintained the policy’s confidentiality because it did not distribute the policy outside the company, but only to 120 of its employees.  The court, however, found this “wide distribution” antonymous to confidentiality.  And, importantly, the court noted that CertainTeed did not label the policy confidential or privileged, and did not instruct its employees of these edicts.

In short, the court found that the antitrust compliance policy was a business document that CertainTeed failed to keep confidential.  The privilege, therefore, did not cover the document.

Critical Distinction

Without much elaboration, the court recognized that the attorney-client privilege covers communications between “CertainTeed’s lawyers and its executives leading up to the adoption of its compliance policy.”  So, according to the court, the privilege covers lawyer-client interactions regarding the drafting and creation of the policy, but not the final product.

And not to stray from the central case point, but the federal common-law attorney-client privilege covers communications between corporate lawyers and corporate employees, and is not limited to lawyer-executive communications as the court’s language suggests.  As the court did not further discuss this point, which is dicta in any event, courts and practitioners should not consider the reference to “lawyers and executives” as limiting the privilege’s scope.

Use of Privileged Documents to Refresh Witness’s Recollection Before Deposition Waives the Privilege, Court Rules Reply

A lawyer preparing a witness for her deposition should proceed cautiously when using privileged documents to refresh the witness’s memory.  In two separate cases, the Nevada Supreme Court ruled that state evidence rules require production of privileged documents—at trials and depositions—when used to refresh a witness’s recollection, whether before or at the hearing or deposition.

I"m afraid it's bad news....This ruling contrasts the federal evidence rule, which leaves the production question to the trial court’s discretion when a party uses privileged documents to refresh a witness’s memory before the hearing or deposition.  See Las Vegas Sands Corp. v. Eighth Judicial Dist., 319 P.3d 618 (Nev. 2014), available here, and Las Vegas Dev. Assocs., LLC, 325 P.3d 1259 (Nev. 2014), available here.

State and Federal Rules Compared

Federal Rule of Evidence 612 requires production of documents, including privileged documents, that a witness reviews— while testifying—to refresh her recollection.  The rule provides the trial judge with discretion, however, to require production if the witness reviews privileged documents to refresh recollection before testifying.

By contrast, Nevada’s counterpart evidence rule requires production—at a hearing—of privileged documents used to refresh a witness’s recollection, leaving the trial judge no discretion when the review occurs before the hearing. Nev. Rev. Stat. § 50.125.

Privilege Waiver

In Sands, the court faced the issue whether Nevada’s evidence rule required production of privileged documents used to refresh at a hearing—or in court. The court found significant the distinction between the federal and state rule (trial court’s discretion when documents reviewed before testifying), and held that the state rule “requires disclosure of any document used to refresh the witness’s recollection before or while testifying, regardless of privilege.”

The question before the Las Vegas Development court was whether the Sands ruling applies to depositions or just in-court hearings.  Finding that Fed. R. Civ. P. 30(c) and its Nevada counterpart provide that “examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence,” the court held that the production rule applies to “depositions and deposition testimony as well as to in-court hearings.”  The court concluded:

When a witness uses a privileged document to refresh his or her recollection prior to giving testimony at a deposition, an adverse party is entitled to have the writing produced at the deposition.


Importantly, the Nevada Supreme Court was quick to note that Federal Rule 612 and Nevada Rule 50.125 were rules of evidence, not rules of discovery.  The rules’ sole purpose is to test the witness’s credibility at the hearing or deposition, not to create a new line of discovery.

And fearful that permitting post-deposition discovery of privileged documents used to refresh the witness’s memory converts the rule “into a discovery tool that has no relation to testing any witness’s credibility,” the court disallowed production of the privileged documents after the hearing or deposition, requiring only that the witness produce the documents at the hearing or deposition.

The Political-Vote Privilege: Where Does Your State Stand? Reply

Each political season brings inevitable election contests, whether at the local, state, or federal level. These challenges often require determining whether illegal votes were cast and, in these instances, election challengers likely need voters to testify for whom they voted.  But with ballot secrecy a prominent tenet of American democracy, the question arises whether voters may refuse to disclose their ballots on grounds of a political-vote privilege.

The political-vote privilege protects from compelled disclosure a voter’s selection in a public election. This privilege is well-established in American law, but opinions differ over whether the privilege derives from the common law or from a constitutional basis. Regardless of the privilege’s foundation, the political-vote privilege ensures that a voter’s choice is kept secret, which is considered essential to keeping democratic elections free from coercion, oppression, and retaliation.

Historically, the political-vote privilege was recognized under American common law and by the U.S. House of Representatives in the years immediately following adoption of the United States Constitution. Courts and commentators agree that the political-vote privilege was first recognized in the 1795 South Carolina decision Johnston v. Corporation of Charleston, 1 S.C.L. (1 Bay) 441 (S.C. Ct. Com. Pl. & Gen. Sess. Jan. 1795), available at 1795 WL 376. In this election-contest case over the city warden position, the court refused to compel voters to reveal the candidate for whom they voted.

This refusal to compel voters to reveal the substance of their ballots gradually became the rule in several states. For example, five years later, in 1800, the Pennsylvania Supreme Court declared that the criminal charge of election-influencing may not depend on proving how an individual voted, for “no citizen is compellable to declare how he has given his suffrage.” Respublica v. Ray, 3 Yeates 65 (Pa. 1800), available at 1800 WL 2544, at *2.

The U.S. House of Representatives Committee on Elections recognized the political-vote privilege in 1817. Chester H. Rowell, A Historical and Legal Digest of all the Contested Election Cases in the House of Representatives of the United States from the First to the Fifty-Sixth Congress, 1789–1901, at 68–69 (GPO 1901). This committee was charged with deciding an election dispute between Rufus Easton and John Scott for the nonvoting delegate seat for the MissouriTerritory. Easton, the incumbent, lost the election to Scott by fifteen votes and petitioned the U.S. House of Representatives to unseat Scott on the ground of illegal voting. During its review of voter qualifications, the committee determined that it could not compel voters to disclose for whom they voted because of a right to ballot secrecy. The House ultimately vacated the seat and ordered a new election.

The political-vote privilege developed further with several influential state-court decisions in the mid 1800s. In 1863, the N.Y. Court of Appeals, in People v. Pease, 27 N.Y. 45 (1863), declared that it could not require voters to disclose their ballots. And in the 1868 election contest for Wayne County Sheriff, the Michigan Supreme Court, in People v. Cicott, 16 Mich. 283 (1868), agreed, stating that it could not compel a qualified voter to disclose how he voted. Other states similarly adopted this privilege. See Williams v. Stein, 38 Ind. 89 (1871); State v. Hilmantel, 23 Wis. 422 (1868); State v. Olin, 23 Wis. 309 (1868).

An exception to the political-vote privilege developed, however, regarding legally unqualified voters, to whom the privilege was not applied. McDaniel’s Case, 3 Penn. L. J. 310 (Ct. Quarter Sess., Philadelphia 1844). A voter may also waive the privilege when he voluntarily consents to disclose the substance of his vote. Martin v. Wood, 4 N.Y. S. 208, 209 (Sup. Ct. 1888).

The political-vote privilege has received relatively little attention under federal common law. Although the U.S. Constitution does not specifically guarantee voting secrecy, Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981); Smith v. Dunn, 381 F. Supp. 822, 825 (M.D. Tenn. 1974), many courts have recognized that voting secrecy is a fundamental tenet of American democracy. United States v. Executive Comm. of the Democratic Party of Greene County, Ala., 254 F. Supp. 543, 546 (N.D. Ala. 1966). But no federal court has expressly recognized a political-vote privilege on federal constitutional grounds.

In 1975, the U.S. Supreme Court included a political-vote privilege as part of its proposed evidence rules, see 56 F.R.D. 183, 249 (1972), but Congress rejected all of the proposed privileges in favor of a general privilege rule permitting the development of privileges under common law. Since this rejection, only a few federal courts have recognized a political-vote privilege under common law. See, e.g., In re Dinnan, 661 F.2d 426, 431–32 (5th Cir. 1981); D’Aurizio v. Borough of Palisades Park, 899 F. Supp. 1352 (D.N.J. 1995).

In 1974, the National Conference on Uniform State Laws (NCUSL) published its second edition of the Uniform Rules of Evidence, which largely followed the proposed Federal Rules of Evidence. These uniform rules included a political-vote privilege that was identical to the proposed federal privilege, and read as follows:

(a) General Rule of Privilege.  An individual has a privilege to refuse to disclose the tenor of the individual’s vote at a political election conducted by secret ballot.

(b) Exceptions.  The privilege under subdivision (a) does not apply if the court finds that the vote was cast illegally or determines that disclosure should be compelled pursuant to the election laws of the State.

A large majority of states have adopted the evidentiary privileges contained in either the Uniform Rules or the proposed Federal Rules, and some have included the political-vote privilege, while others have not.  In other states, the privilege has common-law or state constitutional support, while other states remain silent on the issue.

So, where does your state fall?  The red-state/blue-state map in this post identifies the states that have adopted the political-vote privilege promulgated by the NCUSL, and those where the privilege has at least some common-law support.

In sum, whether by rule or common law, the political-vote privilege protects from compelled disclosure a legal voter’s selection in a public election.  The privilege does not apply where it is proven that the voter illegally cast a ballot.  The illegal voter may assert his Fifth Amendment privilege against self-incrimination to avoid revealing his vote, but the political-vote privilege will offer no protection.