Rule 512 Privileged matter disclosed under compulsion or without opportunity to claim privilege. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (1) compelled erroneously, or (2) made without opportunity to claim the privilege. [L 1980, c 164, pt of 1]

 

RULE 512 COMMENTARY

 

This rule is identical with the U.S. Supreme Court proposal for Rule 512, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). The original Advisory Committee's Note said: "Confidentiality, once destroyed, is not susceptible of restoration, yet some measure of repair may be accomplished by preventing use of the evidence against the holder of the privilege. The remedy of exclusion is therefore made available...." Rejecting the argument that the holder of the privilege should resist erroneous compulsion by exhausting all remedies, including appeal from a judgment of contempt, the Note explained: "[T]his exacts of the holder greater fortitude in the face of authority than ordinary individuals are likely to possess, and assumes unrealistically that a judicial remedy is always available." This rule also resembles Uniform Rule of Evidence 511.

 

 

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