WSR 11-23-036

RULES OF COURT

STATE SUPREME COURT


[ November 4, 2011 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO ER 501-GENERAL RULE )

)

)

ORDER

NO. 25700-A-992


The Washington State Bar Association having recommended the adoption of the proposed amendments to ER 501-General Rule, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2012.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2012. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 4th day of November, 2011.
For the Court

Madsen, C.J.

CHIEF JUSTICE


GR 9 COVER SHEET


Suggested Amendment

EVIDENCE RULES (ER)

Rule 501 - General Rule


Submitted by the Board of Governors of the

Washington State Bar Association



Purpose: ER 501 presently identifies certain statutes and "case law" that make reference to privileges and communications. ER 501(h) identifies two significant cases that apply to the journalist privilege, including Senear v. Daily Journal American, 97 Wn.2d 148, 641 P.2d 1180 (1982) and State v. Rinaldo, 102 Wn.2d 749, 689 P.2d 392 (1984). ER 501(h) is the only subpart of the rule that refers to case law, and the other privileges identified in the rule include references only to statutes.

The suggested amendment to ER 501 would strike references to these two cases, and instead refer to the statute that governs the journalist privilege: RCW 5.68.010. A concurrent proposal would eliminate a reference to "case law" at the top of the rule, as there would no longer be a reference to case law following each privileged in the rule. This suggested amendment would not create any privilege nor abrogate any privilege by implication or omission and is designed to consistently refer to the relevant statutes.

ER 501(f) currently refers to the "Husband Wife" privilege. Since its inception, the Revised Code of Washington has been updated to refer to the "Spouse or Domestic Partner" privilege. The suggested amendment would amend the reference to conform to the language contained in the applicable statutory provisions. RCW 26.21.355(8) has also been replaced by RCW 26.21A.275(8). Accordingly, the suggested amendment would update and correct the cited statutory references.


SUGGESTED AMENDMENT

EVIDENCE RULES (ER)

Rule 501 - General Rule



The following citations are to certain statutes and case law that make reference to privileges or privileged communications. This list is not intended to create any privilege, nor to abrogate any privilege by implication or omission.

(a) Attorney-Client. (Reserved. See RCW 5.60.060(2).)

(b) Clergyman or Priest. (Reserved. See RCW 5.60.060(3), 26.44.060, 70.124.060.)

(c) Dispute Resolution Center. (Reserved. See RCW 7.75.050.)

(d) Counselor. (Reserved. See RCW 18.19.180.)

(e) Higher Education Procedures. (Reserved. See RCW 28B.19.120(4).)

(f) Husband-Wife Spouse or Domestic Partner. (Reserved. See RCW 5.60.060(1), 26.20.071, 26.21.355(8) 26.21A.275(8).)

(g) Interpreter in Legal Proceeding. (Reserved. See RCW 2.42.160; GR 11.1(e).)

(h) Journalist. (Reserved. See Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982); State v. Rinaldo, 102 Wn.2d 749, 689 P.2d 392 (1984) RCW 5.68.010.)

(i) Optometrist-Patient. (Reserved. See RCW 18.53.200, 26.44.060.)

(j) Physician-Patient. (Reserved. See RCW 5.60.060(4), 26.26.120, 26.44.060, 51.04.050, 69.41.020, 69.50.403, 70.124.060, 71.05.250.)

(k) Psychologist-Client. (Reserved. See RCW 18.83.110, 26.44.060, 70.124.060.)

(l) Public Assistance Recipient. (Reserved. See RCW 74.04.060.)

(m) Public Officer. (Reserved. See RCW 5.60.060(5).)

(n) Registered Nurse. (Reserved. See RCW 5.62.010, 5.62.020, 5.62.030.)

Washington State Code Reviser's Office