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.