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21. What should govern the court's determination of the admissibility of the counselor's testimony?
In a diversity action in federal court, the plaintiff seeks to have a drug abuse counselor from an employee assistance program testify about her communications with the defendant. The communications are privileged against disclosure under the relevant law of the state where the plaintiff's cause of action arose.
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A is incorrect. In general, the common law, as interpreted by US courts in the light of reason and experience, governs privilege; however, in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. Fed. R. Evid. 501.
B is incorrect. A federal court sitting in diversity applies state law according to the host state's choice of law rules. Fed. R. Evid. 501.
C is incorrect. The admissibility of attorney-client testimony is governed by FRE 501 and requires a determination of the applicable state privilege law.