Rule 43(a) and the Communication Privileged Understate Law: An Analysis of Confusion

What rules govern the admissibility of evidence in federal court? Rule 43 (a) purports to provide the answer with respect to cases falling within the ambit of the Federal Rules of Civil Procedure.' Is the Rule working satisfactorily, or should it now be abandoned in favor of a new and different solution? The problem thus presented is broad and pervasive. A definitive answer will not be attempted in this paper.

Instead, the writer proposes to give only a general discussion of the broader aspects of the Rule, and to limit analysis of the cases to a very restricted area--the meaning and application of the Rule with respect to the communication privileged under state law. Perhaps this tree approach to the forest of Rule 43(a) will sharpen analysis of the broader problem.