Jardine, Logan & O’Brien, P.L.L.P. JLO legal • ease Fall 2009 Qualified Litigation Attorneys

Familial Privilege in Minnesota IN THIS by Darwin S. Williams

ost people are familiar with the concept of the “marital privilege” as it relates to criminal issue Mproceedings, where a person cannot be compelled to testify against their spouse. Most people do not know that the marital privilege is not asserted by the testifying spouse, but by the spouse who Familial Privilege in MN . . . .1 may be adversely affected by the testimony. Most are also unaware that there is a similar privilege protecting communications between a parent and a minor child and that these privileges are not Recorded Statements . . . . .2 limited to the criminal courts; they can be asserted in civil cases as well. JLO Notice ...... 3 Exclusionary rules and evidentiary privileges are based primarily on the nature of the action generally disfavored by the law because they involved, for instance, cases where one spouse is Firm News ...... 3 contravene the fundamental principal that “the accused of committing a wrong against the public...has a right to every man’s evidence.” See other spouse (i.e. family law issues such as non- United States v. Bryan , 339 U.S. 323, 331 (1950). support or child neglect). The United States Supreme Court has warned Subscription Information that such rules and privileges must be strictly The “confidential inter-spousal construed and accepted “only to the very communications” privilege protects against the A referral is the best compliment limited extent that permitting a refusal to testify disclosure of any private communications you can give an attorney. If you or excluding relevant evidence has a public good between spouses made during the marriage. know of anyone who may be transcending the normally predominant This privilege is similar to the attorney-client interested in receiving this principle of utilizing all rational means for privilege in that it is a protection of newsletter, please complete the ascertaining truth.” See United States v. Nixon , communications that are expected by society to section below and return it via fax 418 U.S. 683, 710, (1974) (citing the dissent of be private and confidential. A legal spouse is to 651-223-5070. You may also use Justice Frankfurter in Elkins v. United States , 364 seen by the law as a confidant, and the law the section below for a change of U.S. 206, 234, (1960)). protects confidential communications that address, etc. Alternatively, you occur during the marriage. may e-mail the information to us Marital Privilege at [email protected]. The “marital testimony privilege” permits a Despite a general erosion of support for the party to prevent any and all adverse testimony Name: marital privilege in other jurisdictions, by the party’s current legal spouse. This is the Company: Minnesota is recognized as one of the states broader of the two privileges because it would Address: that has steadfastly retained the privilege against include knowledge of any adverse information City: adverse spousal testimony. See State v. Gianakos , regarding the spouse, including communications State/Zip: 644 N.W.2d 409, 415 (Minn. 2002) (citing that occurred prior to the marriage, as long as Phone: Trammel v. United States , 445 U.S. 40, 49 (1980)). the couple is still married at the time the E-mail: Minnesota Statute § 595.02 subd. 1(a) (2008) testimony is being sought. The marital sets out two distinct marital privileges: (1) the testimony privilege has the effect of preventing This newsletter is a periodic publication privilege to prevent a spouse from testifying at all adverse testimony by a spouse without the of Jardine, Logan & O’Brien, any time concerning confidential inter-spousal pri vilege holder’s consent. The privilege exists as P.L.L.P. It should not be considered as communications made during the marriage; and long as the witness and party are legally married legal advice on any particular issue, fact (2) the privilege to prevent a spouse from at the time of the testimony. See Minnesota or circumstance. Its contents are for testifying against the other during the marriage. Statute § 517.01 (2008); Baker v. Baker , 222 general informational purposes only. See State v. Palubicki , 700 N.W.2d 476, 483 (Minn. Minn. 169, 171, 23 N.W.2d 582, 583 (Minn. 2005). Minnesota Statute § 595.02 subd. 1(a) 1946). The subject matter of the proposed Comments or inquiries may be directed carves out certain logical and specific exceptions testimony is inconsequential as long as the party to Shannon Banaszewski. Privilege continued on Page 3

8519 Eagle Point Boulevard, Suite 100 • Lake Elmo, Minnesota 55042 • 651-290-6500 • www.jlolaw.com Recorded Statements the attorney-client privilege, they would still Use at Trial by Jason A. Koch not be discoverable unless the plaintiff made the required showing set forth in Minn. R. Generally, an out of court statement is Discoverability Civ. P. 26.02(d). In analyzing the issue, the inadmissible hearsay. But the statement may Court noted “Federal Courts applying be admitted if it is a non-hearsay statement n Minnesota, parties to a lawsuit may identical Rule 26(b) have held that ‘mere against interest or subject to an exception to Igenerally obtain discovery regarding any surmise’ that a statement might include the hearsay rule. Even if not admissible to matter, not privileged, that is relevant to a impeachment material does not constitute prove the fact of the matter asserted, a claim or defense of any party. Frequently, substantial need.” Id. The Court also noted statement may be used at trial for the limited the issue arises as to whether a recorded that the requesting party ultimately served purpose of impeaching a witness if he/she statement taken by an insurance adjuster interrogatories on and deposed the party gives trial testimony which is inconsistent prior to commencement of a lawsuit may witness. Id. at 682. The Court further noted with his/her previous statement. ultimately be discoverable. that the requesting party made no claim that the party witness was hostile or his memory The use of statements at trial is further The Minnesota Rules of Civil Procedure faulty. Id. Absent a showing of substantial restricted by Minn. Stat. § 602.01, which define a statement as “(1) A written need and the inability to obtain the provides: Any statement secured from an injured statement signed or otherwise adopted or substantial equivalent, the Court held that person at any time within 30 days after such injuries approved by the person making it, or (2) A the statements of the party were not were sustained shall be presumably fraudulent in the stenographic, mechanical, electrical, or other discoverable. trial of any action for damages for injuries sustained recording, or a transcription thereof that is a by such person or for the death of such person as the substantial verbatim recital of an oral Courts have made an interesting distinction result of such injuries. No statement can be used as statement by the person making it and when the party is a business, rather than an evidence in any court unless the party so obtaining the contemporaneously recorded.” Minn. R. individual. Courts have held that statements statement shall give to such injured person a copy Civ. P. 26.02(d). of non-party witnesses who were employees thereof within 30 days after the same was made. of a party were discoverable. See Wiggin v. Minn. R. Civ. P. 26.02 provides that a party Apple Valley Medical Clinic, Ltd. , 459 N.W.2d The purpose of Minn. Stat. § 602.01 is to may obtain discovery of documents and 918, 920 (Minn. 1990). In Wiggin , the prevent unfair practices in the procurement tangible things, otherwise discoverable, and defendant was a medical clinic. The of statements from injured parties. See prepared in anticipation of litigation or for statement at issue was that of a doctor Yeager v. Chapman , 233 Minn. 1, 10, 45 trial by or for another party or by or for that employed by the clinic. Despite the fact that N.W.2d 776, 782 (1951). The exclusionary party’s representative (including insurer) plaintiff was seeking to impute the doctor’s clause of the statute, like the presumption of only upon a showing that the party seeking negligence to the clinic, the court held that fraudulence, only applies to statements given discovery has substantial need of the the statement of the doctor was discoverable by an injured person who seeks to recover in materials in the preparation of the party’s and noted that the corporate employee who an action for injuries sustained. See Hilleshiem case and that the party is unable, without was not a named party to the litigation was v. Stippel , 283 Minn. 59, 65, 166 N.W.2d 325, undue hardship, to obtain the substantial not a “party” within the meaning of Minn. 330 (1969). The statute does not bar the equivalent of the materials by other means. R. Civ. P. 26.02. Similarly, in Leer v. Chicago, admission of statements in other types of The Rule is clear that a party may obtain, Milwaukee, St. Paul and Pac. Ry. Co. , 308 actions, even if closely related to a personal without the required showing, a statement N.W.2d 305 (Minn. 1981), a plaintiff sued a injury action. See, e.g., Dike v. American Family concerning the lawsuit which was previously railroad, in part, for negligence in executing Mut. Ins. Co ., 284 Minn. 412, 420, 170 made by that party. A party is also entitled, a r ailroad car switching movement. The N.W.2d 563, 567 (1969) (holding no without the required showing, to obtain plaintiff did not bring an action against statutory protection existed for statement statements related to the lawsuit previously members of the switching crew, but sought made by injured insured in his declaratory made by any non-party witness. Therefore, to discover their statements pursuant to the judgment action against insurer to determine any time an insurer takes a recorded Rule allowing discovery of non-party coverage for motor vehicle accident); statement of a non-party witness or of the statements. Id. at 306. The court held the Hillesheim , 283 Minn. at 64-65, 166 N.W.2d at future plaintiff, those statements will be statements discoverable despite defendant’s 329 (concluding statute did not apply to discoverable in a subsequent lawsuit. argument that the plaintiff sought to impute statement given by injured defendant in to the railroad the negligence of the personal injury case). Minn. Rule Civ. P. 26.02 does not allow witnesses and that the employee’s could be discovery of a statement from an adverse named as parties a t any time. Id . at 307. Therefore, when taking the statement of an party without first establishing that the party injured person, it is important to provide has substantial need and is unable to obtain Therefore, caution must be exercised when him/her with a copy of the statement the substantial equivalent of the materials by taking recorded statements of employees of within 30 days, to ensure that it may be other means. See Ossenfort v. Associated Milk an insured business. As was discussed used a t a later trial. • Producers , Inc ., 254 N.W.2d 672, 681 (Minn. above, recorded statements of employees 1977). At issue in Ossenfort, were statements have typically been held to be discoverable, made by a party. Id. The Court noted that if while statements of the insured party are the statements were not pr otected by discoverable only upon making the required 2 showing set forth in Minn. R. Civ. P. 26.02. N O T I C E

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Privilege continued from page 1 spouse objects and the testimony would be shared privilege that “may be waived by adverse to the privilege holder. Common express consent to disclosure by a parent FIRM NEWS law marriage was abolished by the entitled to claim the privilege or by the child The Firm welcomes Daniel J. Stahley as the Minnesota legislature in 1941. who made the communication or by failure most recent addition to our team of associates. of the child or parent to object when the Mr Stahley’s practice focuses on litigation and The social policy underlying the privilege contents of a communication are insurance coverage. Prior to joining Jardine, against adverse spousal testimony is to demanded.” Logan & O’Brien, Mr. Stahley practiced personal injury law in the Chicago area. • preserve marital harmony. See State v. Fest , 285 N.W.2d 85, 86 (Minn. 1939). According Like the exceptions to spousal privilege, the Congratulations to Gerald M. Linnihan and to the Minnesota Supreme Court, placing a parent-child privilege has logical exceptions Alan R. Vanasek (Of Counsel) who have spouse under oath to testify adverse to the for civil actions between family members again been named to the list of the Top 40 spouse’s claim would “weaken the entire (such as divorce proceedings, commitment ADR Professionals in a poll of ADR social structure” by causing “strife between proceedings, terminations of parental rights, Professionals conducted by Minnesota Law & Politics.. • the parties to a marriage contract” and thus or in criminal proceedings in which the undermining the institution of marriage. parent is charged with a crime against the JLO applauds Matthew P. Bandt for being communicating child). Id. included on the Minnesota Law & Politics In most states that recognize a marital SuperLawyers 2009 Minnesota Rising Star list. • privilege, the privilege can be overcome if The social policy behind the parent-child the party seeking the testimony of the privilege is to “encourage children to confide Congratulations to the following JLO attorneys who were named to this year’s spouse can show that the marriage was really in their parents and seek their advice in times Minnesota Law & Politics SuperLawyers list: just a sham. In Minnesota, however, there is of trouble.” See State v. Stephens , 580 N.W.2d Gerald M. Linnihan, Eugene J. Flick, Pierre a very strong presumption that the marriage 75, 79 (Minn. Ct. App. 1998). This privilege N. Regnier, Lawrence M. Rocheford, is genuine. This presumption is so strong, in is not as strongly protected by Minnesota’s Joseph E. Flynn, Leonard J. Schweich, and fact, that the Minnesota Supreme Court appellate courts. The key Minnesota case Alan R. Vanasek, Of Counsel. • recently noted that they have never ruled addressing this privilege involves an attempt Congratulations to James G. Golembeck that a marriage was unworthy of protection by a teen to pass a handwritten note through and Elisa M. Hatlevig on their recent Court by the marital privilege. See State v. Gianakos . two other people to his sequestered mother of Appeals victory in City of Owatonna v. Rare 644 NW.2d 409, 418 (Minn. 2002) (noting in an attempt to have her corroborate his Aircraft, Ltd. , 2009 WL 1684479 (Minn. Ct. that the Court had never ruled that a testimony. Id. The court held that “the App. June 16, 2009). The Court of Appeals marriage was unworthy of protection by the public policy preserving confidentiality does reversed the trial court’s ruling in favor of Rare Aircraft and remanded for entry of judgment in marital privilege and declining to conclude not permit [a child] to coach his mother’s favor of the City. The Supreme Court denied that the marriage at issue—which was testimony or circumvent the trial court’s Rare Aircraft’s petition for further review. • admittedly motivated by a desire to shield the order [that she be sequestered].” Id. couple from adverse testimony—was so Congratulations to James G. Golembeck clearly a sham that the privilege should be Minnesota law continues to recognize and and Mark K. Hellie on their recent Court of denied). protect both the marital and the parent-child Appeals victory in Nelson v. City of Birchwood , 2009 WL 3426792 (Minn. Ct. App. October 27, relationship with exclusionary evidentiary 2009). The Court of Appeals affirmed the Parent-Child Privilege privileges. However, these protections are district court’s grant of summary judgment to limited and often times they are not even the City, affirming that the City had the Minnesota Statute § 595.02, subd. 1(j) asserted. • municipal authority to regulate docking on recognizes a privilege for certain public land. • communications between a parent and child. Special thanks to former JLO law clerk Esteban E-Mail Option: JLO now offers the J L O The statute provides that “a parent or the Trevino for doing the preliminary research on the l e g a l • e a s e in an electronic format. If you parent’s minor child may not be examined as topic of marital privilege. would like to receive this publication via e-mail to any communication made in confidence in a PDF format, please e-mail your by the minor to the minor’s parent.” A information to [email protected] . Once we communication between the parent and the have your information, you will begin to receive minor child is considered confidential only if the JLO l e g a l • e a s e via e-mail instead of a paper copy in the mail. If you would like to it is made “out of the presence of persons continue receiving the JLO l e g a l • e a s e not members of the child's immediate family by mail, you do not need to do anything. • living in the same household.” This is a 3 JLO l e g a l • e a s e Jardine, Logan & O’Brien, P.L.L.P., is a mid-sized civil litigation law firm that has handled some of the region’s largest and most difficult disputes with outstanding results for clients. Litigation has always been our primary focus. With trial attorneys admitted in Minnesota, Wisconsin, North Dakota, South Dakota, and Iowa, our firm has the ability and expertise to manage cases of any size or complexity. We are trial lawyers dedicated to finding litigation solutions for our clients.

About The Authors Darwin S. Williams Jason A. Koch [email protected] [email protected] 651-290-6503 651-290-7415 Darwin is a senior associate at Jardine, Logan & O’Brien, Jason is a senior associate at Jardine, Logan & O’Brien, P.L.L.P., and practices primarily in civil litigation, including P.L.L.P., and practices primarily in civil litigation, including the areas of products liability, construction law, general the areas of construction law, general liability/negligence, liability/negligence, motor vehicle liability, and health law, employment law and motor vehicle liability. government liability. Darwin is a 2005 graduate of the Jason is a 2003 graduate of the University of Minnesota University of St. Thomas School of Law. Law School.

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