§ 7410. Privilege.

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§ 7410. Privilege.

(a)General rule.-- Except as otherwise provided in this section, a collaborative communication is privileged, may not be compelled through discovery and shall not be admissible as evidence in an action or proceeding. Evidence that is otherwise admissible and subject to discovery shall not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.

(b)Waiver.--

(1)A party may waive a privilege belonging to the party only if all parties waive the privilege and, in the case of a communication by a nonparty participant, only if the nonparty participant and all parties waive the privilege.

(2)If a party discloses a privileged collaborative communication that prejudices another party, the disclosing party waives the right to assert a privilege under this section to the extent necessary for the party prejudiced to respond to the disclosure or representation.

(c)Nonapplicability.-- Privilege under subsection

(a)shall not apply to:

(1)A communication that is not subject to the privilege by agreement of the parties according to the terms of a participation agreement.

(2)A communication that is made during a session of a collaborative law process that is open, or required by law to be open, to the public.

(3)A communication sought, obtained or used to:

(i)threaten or plan to inflict bodily injury, commit or attempt to commit a crime; or

(ii)conceal ongoing criminal activity.

(d)Exceptions.-- The following exceptions apply to the privilege under subsection (a):

(1)A communication sought or offered to prove or disprove facts relating to a claim or complaint of professional misconduct or malpractice or a fee dispute.

(2)A communication sought or offered to prove facts relating to the abuse, neglect, abandonment or exploitation of a child or abuse of an adult.

(3)A communication sought or offered in a criminal proceeding or in an action to enforce, void, set aside or modify a settlement agreement where a tribunal or court of competent jurisdiction finds that the evidence is not otherwise available and the need for the evidence substantially outweighs the interest in protecting the privilege.

(e)Limitation.--

(1)If a collaborative communication is subject to an exception under subsection (d), only the part of the collaborative communication necessary for the application of the exception may be disclosed or admitted.

(2)Disclosure or admission of evidence under subsection

(d)does not make the evidence or any other collaborative communication discoverable or admissible for any other purpose.

(f)Construction.-- This section shall not be construed to affect the scope of another applicable privilege under State law or rule of court.

42c7411s