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General Law Division


The question arises: What are the procedural effects of the government’s successful claim of the privilege in litigation? If the generalizations of the Advisory Committee on the proposed Federal Rule of Evidence 509 and Ellsberg v. Mitchell, quoted at the outset of this article, are accurate, then the only effects would be that the privileged information becomes unavailable and the case proceeds without the privileged evidence. A successful privilege claim would not end the litigation unless the claim deprived either the prosecution or plaintiff of sufficient evidence to sustain the initial burden of production. As authority for the generalization, Ellsberg relied on McCormick’s Handbook of the Law of Evidence (Hornbook Series), in the Advisory Committee Notes to the Federal Rules of Evidence. In short, the generalization often appears in both primary and secondary authority. However, even a cursory review of case law demonstrates the generalization is a misleading oversimplification.

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