490-J:15 Privilege Against Disclosure for Collaborative Law Communication. –
I. Except as set forth in this section, a collaborative law communication is privileged, is not subject to discovery, and is not admissible into evidence. Accordingly, a party or a party's lawyer or a neutral participant may refuse to disclose, and may prevent any other person from disclosing, a collaborative law communication.
II. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because of its disclosure or use in a collaborative law process.
III. Waiver of Privilege.
(a) The privilege may be waived wholly or in part in a document or orally during a proceeding if it is expressly waived by all parties and, in the case of the privilege of a neutral participant, it is also expressly waived by the neutral participant.
(b) A party who discloses a collaborative law communication for which the privilege has not been waived under subparagraph (a) shall be deemed to have waived the privilege, but only to the extent necessary to permit any other party to respond to the unauthorized disclosure.
IV. There is no privilege under this chapter for a collaborative law communication that is:
(a) A threat or statement of a plan to inflict bodily injury or commit a crime of violence;
(b) In an agreement resulting from the collaborative law process, evidenced by a document signed by all parties to the agreement;
(c) Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice arising from or related to a collaborative law process; or
(d) Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation of a child or adult.
V. There is no privilege under this chapter if a court finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown the evidence is not otherwise available, the need for the evidence substantially outweighs the interest in protecting the privilege and the collaborative law communication is sought or offered in:
(a) A court proceeding involving a felony; or
(b) A proceeding seeking rescission or clarification of an agreement arising out of the collaborative law process or in which a defense to avoid liability on the contract is asserted.
VI. If a collaborative law communication is subject to an exception under paragraph IV or V, only the part of the communication necessary for the application of the exception may be disclosed or admitted.
VII. Disclosure or admission of evidence excepted from the privilege under paragraph IV or V does not make the evidence or any other collaborative law communication discoverable or admissible for any other purpose.
Source. 2021, 206:2, Pt. V, Sec. 1, eff. Oct. 9, 2021.