Printable Format60-437. Waiver of privilege by contract or previous disclosure. A person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if the judge finds that such person or any other person while the holder of the privilege has (a) contracted with a party against whom the privilege is claimed that he or she would not claim the privilege or, (b) without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.
History: L. 1963, ch. 303, 60-437; January 1, 1964.
Law Review and Bar Journal References:
Mentioned with K.S.A. 60-427 in "The Physician-Patient Privilege Under the New Code," Steven P. FLood, 33 J.B.A.K. 100, 148.
Mentioned with respect to husband-wife privilege, Ross R. Freeman, 6 W.L.J. 144, 158 (1966).
"Protecting the Plaintiff's Right to Discovery," Michael Sexton, 4 J.K.T.L.A. No. 6, 26, 27 (1981).
"Attacking The Peer Review Privilege: Some Ideas," Derek S. Casey, J.K.T.L.A. Vol. XVII, No. 6, 19 (1994).
"The Privilege Log: Where the Battle Can Be Won or Lost," Mark B. Hutton, J.K.T.L.A. Vol. XIX, No. 6, 27 (1996).
"The Kansas Joint-Defense Privilege: A Cigarette Smokescreen," Derek S. Casey, J.K.T.L.A. Vol. XXII, No. 6, 16 (1999).
"To Preserve and Protect: A Nuts-and-Bolts Approach to Attorney-Client Privilege and Work-Product Immunity in Kansas Federal Courts," Heather Brown Wolesky, 74 J.K.B.A. No. 7, 32 (2005).
Criminal Procedure Survey, 56 K.L.R. 745 (2008).
"Ethics in Handling Medical Records Pre-Suit and in Civil Discovery," James R. Howell, 32 J.K.A.J., No. 4, 6 (2009).
Attorney General's Opinions:
Open records act; certain laboratory records not required to be open. 88-88.
Workers compensation; schedules of maximum fees; advisory panel; contracts with private entities; information. 91-36.
CASE ANNOTATIONS
1. Cited in holding lawyer-client privilege inapplicable to claims adjuster and insured. Alseike v. Miller, 196 Kan. 547, 559, 412 P.2d 1007.
2. Waiver discussed; privilege against self-incrimination; appellate review refused (K.S.A. 22-3417). State v. Sanders, 224 Kan. 138, 143, 518 P.2d 702.
3. Defendant knowingly and voluntarily waived right to invoke marital privilege. State v. Johnson, 223 Kan. 237, 242, 573 P.2d 994.
4. Cellmate's testimony about defendant's claimed privileged information examined. State v. Spears, 246 Kan. 283, 287, 787 P.2d 716 (1990).
5. No statutory authorization exists to waive peer review privilege when claim for services rendered in issue. Herbstreith v. de Bakker, 249 Kan. 67, 81, 815 P.2d 102 (1991).
6. Whether court's refusal to force codefendant to testify denied defendant right to compel witness testimony examined. State v. Green, 254 Kan. 669, 679, 867 P.2d 366 (1994).
7. Whether conviction and sentencing of codefendant removed 5th Amendment protection for codefendant's testimony in defendant's trial examined. State v. Johnson-Howell, 255 Kan. 928, 939, 881 P.2d 1288 (1994).
8. Memorandum between corporate officer and attorney protected by attorney-client privilege; crime or fraud exception inapplicable. Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1371 (1997).