Admission of Evidence Not Privileged Under Local Law
Section 139(2) of the Restatement (Second) of the Conflict of Laws states:
Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect. RESTATEMENT (SECOND) OF CONFLICT OF LAWS 139(2) (1988).
Section 139(2) recognizes the "strong policy" a forum state has in disclosing "all relevant facts that are not privileged under its own local law." Id. cmt. d.
Thus, under section 139(2), a forum state will admit evidence that is not privileged under local law, unless it finds the local policy favoring admission is outweighed by countervailing considerations. Id.
Comment d to section 139 sets out certain factors a court should consider in determining whether to admit evidence that, while privileged in the "most significant relationship" state, is not privileged in the forum state. Those factors include:
(1) the number and nature of the contacts the forum state has with the parties and the transaction involved;
(2) the relative materiality of the evidence sought to be excluded;
(3) the kind of privilege involved; and
(4) fairness to the parties.Id.
The forum state should, according to the Restatement, be more reluctant to give effect to a foreign privilege if the contacts with the forum state are "numerous and important." Id.
On the other hand, the forum state should be more inclined to give effect to a foreign privilege if the facts established by the subject evidence would be unlikely to affect the outcome of the case or could be proved in some other way. Id.
Likewise, the forum state should be more inclined to give effect to a foreign privilege if it:
(1) is well established and recognized in many states;
(2) is generally similar to one or more privileges found in local law;
(3) was relied upon by the parties when making the communication. Id.
Under rule 104(a) of the Texas Rules of Evidence, preliminary questions of admissibility, including questions concerning the existence of a privilege, are for the trial court. See TEX. R. EVID. 104(a); see also McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).
When making a privilege determination, the trial court is afforded broad discretion. See Welch v. State, 908 S.W.2d 258, 264 (Tex. App.-El Paso 1995, no pet.).
We review the trial court's decision under an abuse of discretion standard. See Carmona v. State, 947 S.W.2d 661, 664 (Tex. App.-Austin 1997, no pet.).
Under that standard, we reverse a trial court's determination only when "the trial court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion." See id.; see also Welch, 908 S.W.2d at 264.