In discovery, how is privilege treated?

• A. Privileged information is generally protected and not discoverable.
• B. Privileged information can be disclosed freely in discovery.
• C. Privilege has no effect in discovery.
• D. Privilege can be waived by any party.

Answer: (D)

Privilege in discovery protects confidential communications, but it isn’t immune to change. A waiver can happen when privileged material is disclosed to someone outside the privilege, or when a party acts in a way that treats the information as usable or non-protected. Because discovery involves multiple parties with evolving positions, the possibility of waiver can arise from actions by any party in the case. That’s why the correct way to think about it is that privilege can be waived by any party. It’s still important to recognize that, in general, privilege aims to protect communications, and courts will enforce it unless a valid waiver or exception applies.