An Erie Approach to Privilege Doctrine
10 ConLaw NOW 205, 2019
13 Pages Posted: 4 Jun 2020
Date Written: May 15, 2019
Abstract
Privilege rules, which determine whether information is discover-able in a particular litigation, often vary from jurisdiction to jurisdiction. Consequently, the Erie doctrine and other choice-of-law principles play an important role in shaping privilege law. This essay, written for the Sixth Annual Constitutional Law Conference at the University of Akron School of Law, considers two recent privilege cases — HannStar Display Corp. v. Sony Electronics, Inc. and In re Silver — which involved the California mediation privilege and the federal patent-agent privilege, respectively. While the HannStar court ignored well-established choice-of-law principles, the Silver decision shows that, when applied and interpreted appropriately, doctrines like Erie can help develop and evolve privilege law through the cross-pollination of ideas among tribunals.
Keywords: Erie, Privilege, Patent Agent Privilege, Mediation Privilege
Suggested Citation: Suggested Citation