Background on how privilege rules were adopted

Evid. Code §911, the commentary to which states: "This section codifies the existing law that privileges are not recognized in the absence of statute." The resolution of privilege rules was perhaps the most controversial aspect in the promulgation of the federal evidence rules. The U.S. Supreme Court proposed for adoption thirteen privilege rules that were ultimately rejected by Congress, which enacted one rule, Fed. R. Evid. 501. The U.S. Senate Report to Fed. R. Evid. 501 explains: Since it was clear that no agreement was likely to be possible as to the content of specific privilege rules, and since the inability to agree threatened to forestall or prevent passage of an entire rules package, the determination was made that the specific privilege rules proposed by the Court should be eliminated and a single rule (rule 501) substituted, leaving the law in its current condition to be developed by the courts of the United States utilizing the principles of the common law. In addition, a proviso was approved requiring Federal courts to recognize and apply state privilege law in civil cases governed by Erie R. Co. v. Tompkins, ... as under present Federal case law. [S. Rep. No. 93-1277, 93d Cong., 2d Sess. (1974).] The Supreme Court's proposed privilege rules can be found in 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), and these unenacted rules, as well as the Uniform Rule of Evidence, served as models for the present article.