Showing 7 of 7 results

Chapter: 23.1

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 71-72 (E.D. Va. 1998)
("Third party disclosure has two effects on the attorney-client privilege. If the communication between attorney and client takes place in the presence of a third party, and that third party hears the communication contemporaneously with its being made, then the attorney-client privilege for that information never existed. . . . If, on the other hand, the communication took place in private, between the attorney and the client alone, then the privilege comes into existence at the time the communication occurred. Subsequent disclosure to a third party then waives the privilege . . . . Thus, it is technically proper to speak of waiver only in the case where the attorney or client communicates the privileged information to a third party after the privilege has come into existence. If the third party is present when the communication is made, it is not technically correct to say that the client has 'waived' the privilege because one cannot waive what never existed. Regardless of whether the privilege ever existed or whether it existed and the client waived it, the result for the communication revealed is the same. Under the common law of attorney-client privilege, the parties privy to the communication must zealously and carefully guard against disclosure to third parties. Courts in this area take almost a strict liability approach to third party disclosure. If the information ends up in the hands of a third party, courts don't want to hear how it got there. Once in the hands of a third party, the privilege, if it ever existed, is lost." (citations omitted; footnote omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 23.1

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 71 (E.D. Va. 1998)
("The attorney-client privilege is like quicksilver. Initially difficult to grasp, once in one's possession it can easily slide though [sic] one's fingers. Disclosure of the communication to a third person is one of the quickest ways for one to lose the attorney-client privilege."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 23.2

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *20, *21 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "There are two primary ways in which a party can waive the attorney-client privilege. First, a party may implicitly waive the privilege by asserting a claim or defense that relies on privileged materials as its basis."; "Second, and more relevant here, a party may expressly waive the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-03-26 Federal CA B 3/14

Chapter: 23.2

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)
("The privilege may be waived if a disclosing party does not take reasonable steps to insure and maintain the confidentiality of the information. See In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 23.3

Case Name: Hollis v. O'Driscoll, No. 13 Civ. 01955 (AJN), 2013 U.S. Dist. LEXIS 83885, at *8, *8-9, *9-10 (S.D.N.Y. June 11, 2013)
(holding that a pro se respondent waived the possible privilege protection for an attachment to her answer, which was a timeline created after she spoke with a lawyer she ultimately did not hire; rejecting the pro se respondent's privilege claim after she hired a lawyer; "To the extent that Respondent now realizes that she may have made a mistake in choosing to submit her timeline to the Court, such after-the-fact regrets do not alter the analysis regarding whether she waived the privilege. Respondent cites no authority for the proposition that strategic errors committed by a party while proceeding pro se may be corrected nunc pro tunc after the party has obtained counsel to advise them on what, in retrospect, may have been an unwise course of action."; "Respondent argues that she did not waive the attorney-client privilege because she did not know or fully understand the nature of the privilege or know that she was waiving it. Respondent cites no case law -- and the Court has found none -- to support her argument that a party, whether proceeding pro se or represented by counsel, must thoroughly understand the nature of the attorney-client privilege before it can be waived. Indeed, some authority explicitly holds to the contrary. See generally 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 511App.01[2] (2013) ('[K]knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant'); accord In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 468 (S.D.N.Y. 1996) (Waiver may take place even if the disclosing party does not 'intentionally relinquish[] a known right.'); see also Weinstein's § 511.02."; "Respondent quotes the definition of 'waiver' in Black's Law Dictionary, which speaks of 'voluntary relinquishment' of a legal right of which the party has 'knowledge.'. . . But Judge Weinstein's treatise, as well as related case law, makes clear that this 'traditional doctrine' of waiver does not apply in the confidential privilege context.")

Case Date Jurisidction State Cite Checked
2013-06-11 Federal NY B 4/14

Chapter: 23.3

Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *42 n.10 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Although Finazzo was not represented at the termination meeting, the crux of the privilege -- confidentiality -- does not require one to be a lawyer in order to understand and be required to assert it. Indeed, if one does not intend the communication to be confidential, and therefore object to discussing it with a third party, it is hard to imagine what purpose the privilege is even serving.")

Case Date Jurisidction State Cite Checked
2013-02-19 Federal NY B 2/14

Chapter: 23.3

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 551 (Va. 2010)
("The determination whether the disclosure was involuntary does not rest on the subjective intent of the doctors. The doctors' intention to maintain the attorney-client privilege does not lead inevitably to the conclusion that the disclosure was involuntary instead of inadvertent. If subjective intention of the proponent of the privilege controlled, a disclosure would always be considered involuntary. However, in the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. See, e.g., In re Grand Jury Proceedings Involving Berkley and Co., Inc., 466 F.Supp. 863, 869 (D. Minn. 1979) (fired employee stole company's documents and disclosed them to the government); Resolution Trust Corp. v. Clayton Dean, 813 F.Supp. 1426, 1430 (D. Ariz. 1993) (internal memorandum leaked to newspaper); Maldonado, 225 F.R.D. at 125-26 (letter from defendants to former attorney inexplicably found in plaintiff's mailbox).")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA