Rule 511  Waiver of privilege by voluntary
disclosure.  A person upon whom these rules confer a privilege against
disclosure waives the privilege if, while holder of the privilege, the person
or the person's predecessor voluntarily discloses or consents to disclosure of
any significant part of the privileged matter.  This rule does not apply if the
disclosure itself is a privileged communication. [L 1980, c 164, pt of §1; am L
1992, c 191, §2(4)]



 



RULE 511 COMMENTARY



 



  This rule closely resembles Uniform Rule of Evidence
510.  The sole justification for any rule of privilege is protection of a
personal right of confidentiality that is recognized to be of greater societal
importance than the principle of free disclosure of all relevant evidence in a
judicial proceeding.  Any intentional disclosure by the holder of the privilege
defeats this purpose and eliminates the necessity for the privilege in that
instance.  Consistent with this, waiver of privilege is generally absolute. 
Once confidentiality has been destroyed by intentional disclosure, the holder
of the privilege may not reinvoke it, and the evidence is as admissible as if
no privilege had initially existed.



  Hawaii courts have recognized the principle of waiver of
privilege by voluntary disclosure, see McKeague v. Freitas, 40 H. 108 (1953);
Territory v. Cabrinha, 24 H. 621 (1919); Takamori v. Kanai, 11 H. 1 (1897).



 



Case Notes



 



  Defendant established that documents withheld from production
were attorney-client communications which remained privileged where disclosure
to Farm Credit Administration was not voluntary or consensual.  925 F. Supp.
1478.



  To determine whether a waiver has occurred, a trial court
must look to the facts of each case and consideration must be given to all of
the circumstances surrounding the disclosure; a court may consider the
following factors: (1) the reasonableness of precautions taken to prevent
disclosure; (2) the amount of time taken to remedy the error; (3) the scope of
discovery; (4) the extent of the disclosure; and (5) the overriding issue of
fairness.  102 H. 465, 78 P.3d 1.



  Natural mother of child waived alleged privilege when she
testified to a significant part of the alleged privileged matter.  85 H. 165
(App.), 938 P.2d 1184.



  Because an attorney acts as an agent and may possess the
authority to bind the client when it comes to waiving the privilege pursuant to
this rule, the trial court's ruling that defendant voluntarily disclosed or
consented to disclosure of the toxicology report, thus waiving defendant's
physician-patient privilege, was not clearly erroneous.  107 H. 282 (App.), 112
P.3d 768.