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 (1996).

  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 (2003).

  Where medical records of petitioner's treatment at the hospital was protected by petitioner's physician-patient privilege that was not waived, regardless of any relevancy of those records to the judicial proceeding before the respondent judge, petitioner's right of confidentiality under HRE rule 504(b) prohibited any disclosure of petitioner's medical records, including in camera disclosure to the respondent judge.  125 H. 31, 251 P.3d 594 (2011).

  Where petitioner testified without counsel at petitioner's deposition and was not expressly advised that petitioner could refuse to answer questions about the treatment of petitioner's physical condition, petitioner's disclosure, upon deposition, of petitioner's treatment for petitioner's arm injury at the hospital was not a voluntary disclosure under this rule; thus, the disclosure of such treatment was not a waiver of petitioner's physician-patient privilege on the matter.  125 H. 31, 251 P.3d 594 (2011).

  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 (1997).

  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 (2005).

  Cited:  129 H. 250 (App.), 297 P.3d 1106 (2013).