Showing 175 of 175 results

Chapter: 30.2

Case Name: Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016)
November 2, 2016 (PRIVILEGE POINT)

"Does Releasing an Internal Investigation Report Always Trigger a Subject Matter Privilege Waiver?"

One might think that a corporation or government entity would always trigger a subject matter privilege waiver by disclosing an internal investigation report. But subject matter waiver risks have been receding.

In Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016), defendant school district released its investigation report into racist text messaging among administrators. Not surprisingly, plaintiffs claimed a waiver, and sought all related documents and privileged communications. The court rejected plaintiffs' efforts, noting that "[t]he 'central element' in determining whether a partial waiver exists is the question of fairness." Id. at *6 (citation omitted). The court noted that plaintiffs "have not argued that [defendant] has made any strategic use of the Report in this litigation, that it relies on the Attorneys' investigation as a form of defense in this action or that it has 'made factual assertions, the truth of which can only be assessed by examination of the privileged communications.'" Id. at *7 (citation omitted). The court also concluded that plaintiffs could obtain "non-privileged materials the Attorneys collected in their investigation . . . through ordinary discovery addressed to the materials' original sources." Id. at *7-8.

Some courts might find that such a release constitutes an effort to gain some advantage in the "court of public opinion," but cases like this continue the trend toward courts' rejection of broad subject matter waivers.

Case Date Jurisdiction State Cite Checked
2016-09-12 Federal PA B 11/16
Comment:

key case


Chapter: 30.2

Case Name: Washington v. United States of America, Case No.: 2:14-cv-13603, Criminal Case No.: 2:12-cr-00187-1, 2014 U.S. Dist. LEXIS 78576, *7-8 (S.D. W.Va. June 10, 2014)
(analyzing the subject matter waiver effect of a criminal defendant's ineffective assistance of counsel claim; "[I]n regard to any such discussions, a subject matter waiver of the privilege attendant to those particular communications should be permitted in fairness to the United States.")

Case Date Jurisdiction State Cite Checked
2014-06-10 Federal WV

Chapter: 30.2

Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *25-26 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "[D]efendants have not demonstrated that Sprint relied on the advice or communications of its counsel to prove a claim or justify certain conduct on Sprint's part, nor that if Sprint had so done, it was 'manifestly unfair' to Vonage [defendant in a separate trial]. Second, defendants have not presented any support for their inferred argument that implicit waiver (in contrast to subject matter waiver based on explicit waiver) in one case can carry over to a subsequent case. Given the fairness consideration at issue in implicit waiver situations -- i.e., manifest unfairness to the opposing party -- the court is not persuaded that implicit waiver automatically carries over to subsequent cases. Finally, defendants have not demonstrated that Sprint plans to rely on the advice that counsel gave it with respect to possible infringement by Vonage to prove a claim in this case. The court will follow the approach taken in Williams [Williams v. Sprint/United Mgmt. Co., 464 F. Supp. 2d 1100 (D. Kan. 2006)] and New Jersey v. Sprint [New Jersey v. Sprint Corp., 258 F.R.D. 421 (D. Kan. 2009)] by allowing defendants to revisit this issue should Sprint 'affirmatively and voluntarily inject the reliance on counsel issue at trial or in subsequent briefing' in this action." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 30.2

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 903, 904 & n.61 (N.D. Ill. 2013)
("Whether a party disclosed information in order to gain a tactical advantage in litigation may inform a fairness determination."; "TMC's [plaintiff] disclosure constitutes a complete subject matter waiver on the subject of Lot No. 1344985. In this case the scope of the waiver extends beyond the actual conversation disclosed in Dr. Kuzmich's [plaintiff's outside lawyer] deposition -- fairness dictates this broad scope."; "As a result of its waiver by disclosure TMC must produce: (1) privileged and non-privileged documents and items in TMC's possession mentioning, discussing, listing, or otherwise relating to Angiomax® Lot No. 1344985; and (2) privileged and non-privileged documents mentioning, reflecting, or relating to communications between Fromer [plaintiff's outside law firm] attorneys or employees and TMC mentioning, discussing, listing, or otherwise relating to Angiomax® Lot No. 1344985."; "This production is not limited to communications involving just Dr. Motheram [plaintiff's scientist] and Frommer employees -- it extends to communications relating to Lot No. 1344985 between any TMC scientist or employee and any Frommer employee or attorney.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 3/14

Chapter: 30.2

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 903 (N.D. Ill. 2013)
(in a patent case, holding that a deposition witness waived privilege protection for communications with a lawyer, after the company's lawyer made the following statement at a deposition: "'I am not sure I agree with your characterization about waiver but to the extent you want to examine what Raj said I am going to permit that.'" (internal citation omitted); holding that the deposition testimony triggered a subject matter waiver; "TMC's [plaintiff] disclosure constitutes a complete subject matter waiver on the subject of Lot No. 1344985. In this case the scope of the waiver extends beyond the actual conversation disclosed in Dr. Kuzmich's [plaintiff's outside lawyer] deposition -- fairness dictates this broad scope. TMC's waiver of privilege over Dr. Kuzmich's conversation with Dr. Motheram [plaintiff's scientist] eight days before the close of the extended fact discovery period afforded TMC a tactical advantage in litigation. TMC disclosed Dr. Kuzmich's conversation with Dr. Motheram because it supports its position -- namely, it supports the position that Lot No. 1344985 was not procured using the New Process and is therefore not material to patentability -- but simultaneously seeks to conceal information that potentially does not support its position. Further discovery on Lot No. 1344985 is needed to settle the materiality of the lot.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 3/14

Chapter: 30.302

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "The Special Master correctly observed that there is a distinction between the results of the investigation and the investigation itself and that reliance on the facts learned in the investigation, when offered from a source other than the investigator, does not put the investigation in issue. . . . When an employer asserts the so-called Faragher/Ellerth defense, the adequacy of its investigation is relevant to the issue of the adequacy of its corrective actions. In this case, however, the adequacy of plaintiff's investigation simply has no relationship to any of the issues in the case.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY

Chapter: 30.302

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "Although Mitre's attaching the products of its investigation to its complaint seems to have been done more for public relations reasons than legal reasons, Mitre's pleading does not put the investigation in issue. The complaint is not evidence, and Mitre cannot offer it as such.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.302

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.402

Case Name: Zen Design Group, Ltd. v. Scholastic, Inc., Case No. 16-12936, 2018 U.S. Dist. LEXIS 104412 (E.D. Mich. June 22, 2018)
(analyzing the scope of an implied waiver in a patent case in which a litigant intends to rely on advice of counsel; "To defend against a claim of willfulness, a party may present evidence that it sought an opinion of counsel as to the merits of the infringement allegations and received exculpatory advice. . . . This is known as the advice-of-counsel defense and it 'aims to establish that due to reasonable reliance on advice from counsel, [the accused infringer's] continued accused activities were done in good faith.'. . . By voluntarily providing the opinion of counsel as part of its defense, the defendant waives its attorney-client privilege and the confidentiality of the related work product. In re EchoStar Commc'ns Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006)."; "A little over a year later, the Federal Circuit revisited waiver in the context of the advice-of-counsel defense. See Seagate [In re Seagate Tech., LLC, 497 F.3d 1360, 1369 (Fed. Cir. 2007)]."; "Both Seagate and Echostar [In re EchoStar Commc'ns Corp., 448 F.3d 1294 (Fed.Cir.2006)] guide the court's analysis and opinion today. Seagate explicitly discussed Echostar and clarified that Echostar 'did not consider waiver of the advice of counsel defense as it relates to trial counsel.' Id. at 1370. Therefore, Seagate's holding pertains to trial counsel while Echostar governs waiver as to all other counsel, leaving open the question the parties ultimately present to this court: when is an attorney considered trial counsel, thus shielding his communications and work product from discovery even when his client asserts the advice-of-counsel defense?"; "Both parties present thoughtful research and analysis. Upon a review of the pertinent caselaw, the court concludes that a bright-line rule for waiver of trial counsel's pre-suit communications and documents is not appropriate. . . . The moment at which an attorney's role morphs from pre-suit advisory counsel into pre-trial strategy counsel is not easily defined by a distinct point in time and is better suited to a fact-intensive case-by-case analysis. After considering the 'circumstances of the disclosure [sought here], the nature of the legal advice sought[,] and the prejudice to the parties of permitting or prohibiting further disclosures[,]' the court concludes that disclosure of Siff's pretrial communications and work product regarding infringement is appropriate."; "Plaintiff accuses Defendant of willfully infringing on its '616 Patent. In response, Defendant submitted an exculpatory opinion as to infringement by outside counsel Stimpson. In doing so, Defendant waived its attorney-client privilege and work product confidentiality as to all other communications and documents given to Defendant on the same subject matter as established by Echostar. The court concludes that this waiver, while not extending to trial counsel's communications and work, extends to Siff's presuit communications and work here.")

Case Date Jurisdiction State Cite Checked
2018-06-22 Federal MI

Chapter: 30.402

Case Name: Regeneron Pharms., Inc. v. Merus N.V., 14-cv-1650 (KBF), 2018 U.S. Dist. LEXIS 49513 (S.D.N.Y. March 26, 2018)
(holding that a patent litigant's reliance on a lawyer's affidavit triggered a broad subject matter waiver; "Thus, on the day that Regeneron disclosed Dr. Smeland's [Regeneron's in-house lawyer] trial affidavit, it waived the privilege as to the subject matter of each of the topics the affidavit addressed. This was intentional and permanent. As described above, this included his views on meaning and scope of claim language, understanding of the technology, materiality (including cumulativeness) of each of the Withheld References. Many of his documents are to or from Dr. Murphy, while others involve Dr. Jones. And as noted below, this process revealed a host of withheld non-privileged documents. Accordingly, the waiver rippled throughout the case."; "The problem, of course, was how this position at trial interacted with Regeneron's discovery obligations. In order to take this position at trial, Regeneron was obligated to have previously produced the documents from Dr. Smeland's files that would have allowed Merus to test his various assertions. This would have substantially altered a significant swath of discovery, including Dr. Smeland's deposition, the deposition of others with whom he interacted, expert discovery, and on. Regeneron did not fulfill its discovery obligations in this regard. That is clear both from a review of the log and the Court's in camera review of documents on the log. There are dozens of documents on Regeneron's privilege log which are from Dr. Smeland's files, and which concern these very topics."; "The Court conducted an in camera review of the documents on the log. Regeneron was, after all, asserting it had done all it was obligated to do. Merus pointed to seemingly inconsistent entries on the log. As it turned out, the log was 'Pandora's Box.' The Court's review revealed that Merus was certainly correct -- there were dozens of 'Smeland documents' as to which the privilege had now been waived."; "But the in camera review revealed far more. It revealed additional serious discovery issues: a number of non-privileged documents related to topics at issue throughout the litigation had been withheld on the basis of privilege, and other documents that should have been produced pursuant to the order regarding the Jones Memo issue had not in fact been disclosed. In all, there were three categories of documents that presented serious concerns of discovery misconduct: (1) Non-privileged documents that were not produced and instead have resided throughout this case on the privilege log (e.g., numerous Excel spreadsheets with scientific test results, third party filings to the PTO, fact statements by non-lawyers not seeking legal advice, etc.). (2) Previously privileged documents as to which Regeneron affirmatively waived the privilege and that this Court ordered be produced pursuant to its February 25, 2015 order. (ECF No. 272.) (3) Documents on the privilege log relating to precisely those topics waived by Regeneron on May 29, 2015 when it filed its trial declarations."; "The Court determined that failure to make full and adequate production of documents in the first two categories during the period of fact discovery itself and independently of the trial misconduct warranted serious sanction. The production failure is undoubtedly larger than the few exemplars revealed by the Court's own review. Given the many thousands of documents on Regeneron's privilege log, the Court could not know the full extent of the problem.")

Case Date Jurisdiction State Cite Checked
2018-03-26 Federal NY

Chapter: 30.402

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The SCO also contends that the Targets impliedly waived the attorney-client privilege as to the testimony sought from the Witness by disclosing the 2016 and 2017 FARA Submissions to DOJ. The waiver extends to the Targets' specific conversations with the Witness that were released in substance to DOJ in these FARA Submissions."; "Upon sending the FARA Submissions to DOJ, the Targets waived, through voluntary disclosure, any attorney-client privilege in their contents. White, 887 F.2d at 271; In re Subpoenas Duces Tecum, 738 F.2d at 1370; Permian Corp., 665 F.2d at 1219. In fact, the FARA Submissions made specific factual representations to DOJ that are unlikely to have originated from sources other than the Targets, and, in large part, were explicitly attributed to one or both Targets' recollections. . . . Additionally, the Targets impliedly waived the privilege as to their communications with the Witness to the extent that these communications related to the FARA Submissions' contents.")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 30.402

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 30.402

Case Name: QBE Insurance Corp. v. Jorda Enterprises, Inc., Case No. 10-21107-CIV-GOLD/GOODMAN, 286 F.R.D. 661, 2012 U.S. Dist. LEXIS 132020 (S.D. Fla. Sept. 17, 2017)
(holding that plaintiff's reliance on privileged communications will trigger a broad subject matter waiver, but not a broad work product waiver; "If QBE decides to rely on attorney-client privileged information at the evidentiary hearing, then it will have generated a waiver applicable to all other attorney-client communications relating to the same subject matter. . . . There is no bright line test for determining what constitutes the subject matter of a waiver, and courts weigh the circumstances of the disclosure, the nature of the advice and whether permitting or prohibiting further disclosures would prejudice the parties. . . . Because the Undersigned does not know whether QBE will finally decide to waive the privilege by affirmatively relying on privileged information and also does not know which documents and testimony will be placed at issue, I cannot now determine with specificity the scope of the waiver."; "As a general rule, the smaller the amount of privileged information disclosed, the narrower the scope of the waiver. Thus, if QBE opts to elicit privileged information from many of its attorneys and to introduce into evidence reports and comprehensive memoranda, then it is likely that the waiver will be substantial. On the other hand, if it discloses only one, two-sentence email and no further privileged documents or testimony, then the subject matter may well be narrow and discrete. The Undersigned cannot pinpoint the scope of the waiver until events unfold at the evidentiary hearing."; "Unlike waiver of attorney-client material, work-product waiver, however, is not a broad waiver of all work-product related to the same subject matter. Instead, it extends only to 'factual' or 'non-opinion' work-product concerning the same subject matter as the disclosed work-product.")

Case Date Jurisdiction State Cite Checked
2017-09-17 Federal FL
Comment:

key case


Chapter: 30.402

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 U.S. Dist. LEXIS 135366 (N.D. Cal. Aug. 23, 2017)
(analyzing the scope of Uber's waiver resulting from its intentional disclosure of privileged communications; "The parties agree that the scope of Uber's waiver is all privileged conversations in which Mr. Levandowski [former Google affiliate employee accused of stealing information and taking it to his new employer Uber] discussed his downloading of Waymo's files and his decision to invoke the Fifth Amendment, along with Uber's response. The difficulty is that Mr. Levandowski has asserted his own attorney-client privilege in those conversations, including the March 29 conversation that Uber disclosed, pursuant to his and Uber's Joint Defense Agreement. . . . All parties also agree that Uber cannot waive Mr. Levandowski's privilege and thus that the Court cannot order Uber to testify as to what was said in the conversations covered by Uber's waiver. . . . Finally, Uber and Waymo also agree that Uber should therefore be precluded from offering into evidence the contents of the March 29, 2017 conversation. . . . The Court agrees that result makes sense. Thus, Uber's inability to waive the privilege as to all conversations which in fairness it should disclose is an additional reason to preclude it from offering the March 29, 2017 conversation into evidence.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal CA

Chapter: 30.402

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 3:17-cv-00939-WHA (JSC), Dkt. No. 1060 (N.D. Cal. Aug. 14, 2017)
(holding that Uber cannot disclaim privilege protection for an obviously privileged communication, so its disclosure of that communication resulted in a subject matter waiver under Rule 502; "In a case stuffed with surprising scenarios yet another has arisen: the party that would normally assert that a conversation between its in-house litigation counsel and its top executives regarding ongoing litigation is protected by the attorney-client privilege is denying any such protection. The Court is thus in the unusual situation of having to adjudicate whether a conversation is privileged notwithstanding the purported privilege holder's insistence that it is not."; "The question remains whether that conversation, or at least the communications regarding why Mr. Levandowski took Google's information and his decision to invoke the Fifth Amendment, were protected by Uber's attorney-client privilege. Waymo, as the party asserting that the privilege applies, bears the burden of proof. . . . the Court finds that the record overwhelmingly compels the finding that Mr. Kalanick's testimony regarding that conversation was protected by Uber's attorney-client privilege."; "Further, during that conversation Ms. Padilla actually advised Mr. Levandowski (as an Uber executive) and Mr. Kalanick (as Uber's CEO) as to what Uber wanted him to do in this litigation; namely, testify. This, too, supports the Court's finding that the communications during that meeting were for the purpose of enabling Uber to obtain legal advice."; "Ms. Padilla's testimony that she did not believe the conversation to be privileged (although, again, she does not then explain why she was present) does not make the conversation not privileged. If that was all it took to make a communication that has all the hallmarks of a privileged communication not privileged then the rule about not using the privilege as a shield and a sword would be meaningless. Under Uber's theory all a party would have to do is cherry pick the communications they want the opposing party to see and identify those as not privileged, all the while being able to shield other not so favorable communications from disclosure even if they are about the very same topic by claiming those communications privileged. The law of privilege is not that unfair."; "By electing to disclose Uber's communications between Mr. Levandowski, Mr. Kalanick and Ms. Padilla Uber deliberately waived its attorney-client privilege with respect to those communications. . . . The waiver extends to undisclosed communications regarding the subject matter of the disclosed communications. See Fed. R. Evid. 502(a)."; "Uber nonetheless insists that the Court should not apply a subject matter waiver because its disclosure of privileged communications (if any) was inadvertent as it had a good faith belief that the communications were not privileged. The Court disagrees."; "Even if the Court found that Uber had a good faith belief that Mr. Levandowski's communications with Ms. Padilla and Mr. Kalanick were not privileged (and the Court does not so find), Uber offers no support for its assertion that a lawyer's incorrect advice on whether communications are privileged constitutes inadvertence for purposes of Rule 502(b). Moreover, as Uber did not take any reasonable steps to prevent the disclosure, the second required element of Rule 502(b) is also not met. Finally, at oral argument the Court offered Uber the opportunity to withdraw its waiver and assert the privilege over the communications, in other words, 'to rectify the error.' Uber declined. Thus the third element of Rule 502(b) is not satisfied. Subject matter waiver applies."; "The next step is for the parties to provide supplemental briefing on the scope of Uber's waiver. As Mr. Kalanick's deposition demonstrates, however, it appears that the scope of the waiver may extend to communications made by and to Mr. Levandowski while his personal attorneys were present. He thus may have an individual attorney-client privilege in those communications, although he did not assert such a privilege as to the communications at issue on this motion. The parties must therefore address whether (1) Mr. Levandowski has an individual attorney-client privilege in communications that would be swept within the scope of Uber's subject matter waiver, (2) Uber can waive the privilege with respect to those communications if Mr. Levandowski has an individual attorney-client privilege, and (3) if Uber cannot, whether in fairness Uber should be allowed to waive the privilege with respect to the communications in which Mr. Levandowski does not claim an individual privilege. The parties, including counsel for Mr. Levandowski, shall meet and confer, with the assistance of the Special Master if necessary, and propose a process for addressing these questions.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal CA
Comment:

key case


Chapter: 30.402

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 3:17-cv-00939-WHA (JSC), Dkt. No. 1060 (N.D. Cal. Aug. 14, 2017)
(holding that Uber cannot disclaim privilege protection for an obviously privileged communication, so its disclosure of that communication resulted in a subject matter waiver under Rule 502; "In a case stuffed with surprising scenarios yet another has arisen: the party that would normally assert that a conversation between its in-house litigation counsel and its top executives regarding ongoing litigation is protected by the attorney-client privilege is denying any such protection. The Court is thus in the unusual situation of having to adjudicate whether a conversation is privileged notwithstanding the purported privilege holder's insistence that it is not."; "The question remains whether that conversation, or at least the communications regarding why Mr. Levandowski took Google's information and his decision to invoke the Fifth Amendment, were protected by Uber's attorney-client privilege. Waymo, as the party asserting that the privilege applies, bears the burden of proof. . . . the Court finds that the record overwhelmingly compels the finding that Mr. Kalanick's testimony regarding that conversation was protected by Uber's attorney-client privilege."; "Further, during that conversation Ms. Padilla actually advised Mr. Levandowski (as an Uber executive) and Mr. Kalanick (as Uber's CEO) as to what Uber wanted him to do in this litigation; namely, testify. This, too, supports the Court's finding that the communications during that meeting were for the purpose of enabling Uber to obtain legal advice."; "Ms. Padilla's testimony that she did not believe the conversation to be privileged (although, again, she does not then explain why she was present) does not make the conversation not privileged. If that was all it took to make a communication that has all the hallmarks of a privileged communication not privileged then the rule about not using the privilege as a shield and a sword would be meaningless. Under Uber's theory all a party would have to do is cherry pick the communications they want the opposing party to see and identify those as not privileged, all the while being able to shield other not so favorable communications from disclosure even if they are about the very same topic by claiming those communications privileged. The law of privilege is not that unfair."; "By electing to disclose Uber's communications between Mr. Levandowski, Mr. Kalanick and Ms. Padilla Uber deliberately waived its attorney-client privilege with respect to those communications. . . . The waiver extends to undisclosed communications regarding the subject matter of the disclosed communications. See Fed. R. Evid. 502(a)."; "Uber nonetheless insists that the Court should not apply a subject matter waiver because its disclosure of privileged communications (if any) was inadvertent as it had a good faith belief that the communications were not privileged. The Court disagrees."; "Even if the Court found that Uber had a good faith belief that Mr. Levandowski's communications with Ms. Padilla and Mr. Kalanick were not privileged (and the Court does not so find), Uber offers no support for its assertion that a lawyer's incorrect advice on whether communications are privileged constitutes inadvertence for purposes of Rule 502(b). Moreover, as Uber did not take any reasonable steps to prevent the disclosure, the second required element of Rule 502(b) is also not met. Finally, at oral argument the Court offered Uber the opportunity to withdraw its waiver and assert the privilege over the communications, in other words, 'to rectify the error.' Uber declined. Thus the third element of Rule 502(b) is not satisfied. Subject matter waiver applies."; "The next step is for the parties to provide supplemental briefing on the scope of Uber's waiver. As Mr. Kalanick's deposition demonstrates, however, it appears that the scope of the waiver may extend to communications made by and to Mr. Levandowski while his personal attorneys were present. He thus may have an individual attorney-client privilege in those communications, although he did not assert such a privilege as to the communications at issue on this motion. The parties must therefore address whether (1) Mr. Levandowski has an individual attorney-client privilege in communications that would be swept within the scope of Uber's subject matter waiver, (2) Uber can waive the privilege with respect to those communications if Mr. Levandowski has an individual attorney-client privilege, and (3) if Uber cannot, whether in fairness Uber should be allowed to waive the privilege with respect to the communications in which Mr. Levandowski does not claim an individual privilege. The parties, including counsel for Mr. Levandowski, shall meet and confer, with the assistance of the Special Master if necessary, and propose a process for addressing these questions.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal CA

Chapter: 30.402

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; "Plaintiffs also contend that Brownlee [Executive] waived the privilege when he testified, without objection, to the report's specific recommendations during his deposition. Unlike Warren, Brownlee, as part-owner and managing partner of Ergo, has the authority to waive attorney-client privilege on behalf of Ergo. . . During Brownlee's deposition, the following exchanges took place: '(Q): Can you describe for the record what the recommendations were [of the investigation]? (A): That I stay away from the building for six months. (A): I went with the recommendations and I followed it. And I had to pay a fine. (Q): Okay. What was the fine? (A): I think it might be $10,000. (A): I've gone to a therapist. But that was -- oh, that was under the recommendation of the internal investigation."; "By discussing Hartman's specific recommendations -- that Brownlee stay away from Ergo for six months, pay a $10,000 fine, and see a therapist -- Brownlee revealed Hartman's key conclusions and thus disclosed the 'gist' of the report. . . . Brownlee, on behalf of himself and Ergo, cannot reveal important conclusions from the report yet continue to maintain that the report itself is privileged. Hence, the Court concludes that Brownlee waived attorney-client privilege for the internal investigation report.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 30.402

Case Name: Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, Case No. 11-2684-JWL, 2017 U.S. Dist. LEXIS 26271 (D. Kan. Feb. 23, 2017)
("A party waives the attorney-client privilege if it discloses the substance of an otherwise-privileged communication. Comcast makes no serious argument that it did not waive privilege by its January 2017 production or by allowing Finnegan's recent testimony. Comcast does note that the judge in the Pennsylvania case affirmatively determined that he need not -- and did not -- decide the question of waiver, but that fact has no bearing on the waiver question which has now come before this court."; "Sprint also argues Finnegan's recent deposition testimony concerning Comcast's due diligence in acquiring defensive patents revealed attorney-client communications. Comcast (again) does not address this assertion in its response brief. The court agrees with Sprint."; "The court has little trouble concluding Comcast's recent disclosure of information in the Pennsylvania case waived the attorney-client privilege. Perhaps the more significant question, however, is the scope of the waiver. Sprint asserts the disclosures waive privilege for all 'information concerning the same subject matter.' Specifically, Sprint argues Comcast must produce all documents it possesses that (1) mention Sprint and concern 'Comcast's patent acquisition[s],' or (2) reflect 'the timing and nature of any Comcast employee's belief that Comcast was preparing for or otherwise anticipated litigation with Sprint.'"; "Comcast has asserted privilege over information on the same subjects, during both depositions and discovery responses. Fairness requires Comcast to disclose all documents on these two subjects 'in order to prevent a selective and misleading presentation of evidence' in this case."; "The court therefore concludes Comcast waived privilege over, and must immediately produce, unredacted copies of all documents not previously produced that (1) mention Sprint and also Comcast's patent acquisitions or (2) reflect the timing and nature of any Comcast employee's belief that Comcast was preparing for or otherwise anticipated litigation with Sprint. As earlier indicated, Sprint has asked that such documents be produced to the court for in camera review. But as Comcast notes, caselaw requires the court to 'have some bases or grounds for conducting an in camera review.' Although the decision to review documents in camera is within the court's sound discretion, such review is not 'to be routinely undertaken.' The court finds no basis on which to conduct an in camera review over all the documents affected by Comcast's subject-matter waiver. Thus, at this time (though without foreclosing the future possibility if issues arise as to specific documents), the court declines to review any documents in camera.")

Case Date Jurisdiction State Cite Checked
2017-02-23 Federal KS

Chapter: 30.402

Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
("Bio-Rad contends these declarations do not disclose any privileged communications -- that they merely reveal certain 'historical facts necessary to rebut Plaintiff's claims,' and that they at most reveal facts that were either disclosed to Bio-Rad's outside auditors at the time (thus waiving any privilege) or were never privileged. . . . Yet Plaintiffs have highlighted at least three examples in the Drapeau Declaration that appear to implicate privilege: (1) his statement that Wadler [] offered 'far more than management was willing to pay' to settle with Life Technologies; (2) his statement that Wadler objected to Bio-Rad's accrual for the Life Technologies Audit prior to the filing of a Form 10-K; and 3) his statement that Wadler 'took actions to undermine Bio-Rad's new Compliance Officer.'. . . To the extent that these statements disclose privileged communications between Wadler and Bio-Rad, any privilege as to these communications or communications on the same subject matter has been waived (particular as Bio-Rad has now expressly stated that nothing in these declarations is protected by privilege). Further, the response and declarations submitted in the DOL broadly accuse Wadler of misconduct and incompetence even while Bio-Rad attempts to prevent Wadler from introducing any privileged or confidential communications to show that these allegations are pretextual. That is the sort of unfairness that Rule 502 does not permit. Accordingly, the Court finds that the waiver that results from Bio-Rad's submissions to the DOL extends to communications on the topics addressed in those documents relating to his alleged misconduct and incompetence.")

Case Date Jurisdiction State Cite Checked
2016-12-20 Federal CA

Chapter: 30.402

Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
("The disclosures have been most glaring in the expert reports Bio-Rad filed in the public record in connection with the Motion to Strike, which repeatedly reference and quote materials that Bio-Rad has claimed are privileged. Although Bio-Rad contends that these reports were filed only to advance its position on a tangential question relating to the propriety of Plaintiff's expert report, by filing them in the public record Bio-Rad has waived attorney-client privilege on the subject matter at issue in all of the communications described in the reports. The Court rejects Bio-Rad's argument that its disclosure of the expert reports does not result in any waiver because they were only offered in support of their Motion to Strike and not to advance their substantive legal positions. The Court finds no authority suggesting that an express and intentional disclosure of privileged communications in litigation does not result in waiver unless it is made in connection with an attempt to prevail on the merits of that party's position rather than simply attempting to gain an advantage on an evidentiary matter.")

Case Date Jurisdiction State Cite Checked
2016-12-20 Federal CA

Chapter: 30.402

Case Name: Dalmatia Import Group, Inc. v. Foodmatch, Inc., Civ. A. No. 16-2767, 2016 U.S. Dist. LEXIS 141037 (E.D. Pa. Oct. 12, 2016)
(finding that defendant did not trigger a subject matter waiver by attaching two privileged communications to an affidavit filed in court; "Dalmatia contends that FoodMatch's use of the exhibits containing communications with Feldman in the Meldrum [FoodMatch's President] affidavit in opposition to Dalmatia's motion for injunctive relief in the parallel litigation in New York creates a complete subject matter waiver of the attorney-client privilege for all communications between FoodMatch and Feldman [FoodMatch's outside lawyer] relating to 'fulfilling existing orders for Whole Foods' in October and November 2015. FoodMatch contends that the privilege only has been waived as to the communications actually contained in the emails."; "Here, Dalmatia relies on generalized arguments that a litigant should not be allowed to simultaneously use privilege as a sword and as a shield and that FoodMatch used the attorney-client communications contained in the exhibits to the Meldrum affidavit in support of its case. . . . It makes no effort, however, to specify how the limited use FoodMatch has made of the two emails at issue has created unfairness to Dalmatia in the particular circumstances of this lawsuit. FoodMatch has not asserted that the communications with its counsel that it disclosed in the exhibits to the Meldrum affidavit present it with any defense to Dalmatia's claims. In fact, the two emails do not contain any legal advice, but merely provide factual information from Meldrum to the attorney."; "Here, Dalmatia has every opportunity to inquire as to the facts contained in the emails from the parties who participated in the events and communications the emails recount. There is no need for Dalmatia to be able to inquire or review the communications of FoodMatch's counsel regarding those events, particularly because any knowledge he may have of them is second-hand. . . . There is no unfairness to Dalmatia from FoodMatch's limited prior use of the emails and consequently, there is no basis to extend the waiver of the attorney-client privilege beyond the emails themselves. An appropriate Order follows.")

Case Date Jurisdiction State Cite Checked
2016-10-12 Federal PA

Chapter: 30.402

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "The Ninth Circuit has plainly held that a party may not selectively waive the attorney-client privilege. It has held that voluntary disclosure to one waives the attorney-client privilege as to the world at large. In re Pac. Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012). There, the court noted that only the Eighth Circuit had adopted the selective waiver doctrine in its decision in Diversified Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc). Id. at 1127. Every other circuit to have addressed the issue had rejected the doctrine of selective waiver. Id. The Ninth Circuit declined to adopt the selective waiver theory finding that, if it was 'to unmoor a privilege from its underlying justification' it would be failing to construe the privilege narrowly.' Id. at 1128. It observed that since the Eighth Circuit decided Diversified, there had been multiple legislative attempts to adopt the theory of selective waiver which had failed. Id. It cited the report of the Advisory Committee on Evidence Rules and portions of the Congressional Record in which Congress declined to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government. Id. As Congress had declined to broadly adopt a new privilege protecting disclosures of attorney-client privileged materials to the government, the Ninth Circuit also declined to do so. Id.")

Case Date Jurisdiction State Cite Checked
2016-05-05 Federal NV

Chapter: 30.402

Case Name: Ingenito v. RIRI USA, Inc., 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. April 25, 2016)
Ingenito v. RIRI USA, Inc., 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. April 25, 2016) ("Plaintiff argues that, because the Supplemental Disclosure voluntarily included communications about Plaintiff's termination, the Court erred in finding that the waiver of attorney-client privilege was limited to the issue of the timing of Plaintiff's notification of her pregnancy and did not include the topic of Plaintiff's termination. . . . Defendants argue that Riri SA expressly communicated its intention to not broaden any waiver of attorney-client privilege in making the Supplemental Disclosure."; "The Court found that, because Riri SA made the Supplemental Production 'as a response to Plaintiff's request rather than as a proactive attempt to inject the communication into the litigation,' the disclosure did not broaden the scope of the waiver triggered by the Initial Production.")

Case Date Jurisdiction State Cite Checked
2016-04-25 Federal NY
Comment:

key case


Chapter: 30.402

Case Name: The Hawk Mountain LLC v. Mirra, Civ. A. No. 13-2083-SLR-SRF, 2016 U.S. Dist. LEXIS 20232 (D. Del. Feb. 19, 2016)
(finding a broad subject matter waiver based on a criminal defendant's disclosure of legal advice she had received; "In the present case, Jordan intentionally filed the Woodhouse Affidavit in her state court criminal proceeding in support of her motion for bail. The Woodhouse Affidavit is a factual summary of the advice provided by Woodhouse to Jordan in 2009 and 2010 in Woodhouse's capacity as Jordan's attorney. The case law supports a subject matter waiver under such circumstances. '[C]alling one's attorney as a fact witness in a prior proceeding constitutes a waiver of the attorney-client privilege, at least regarding the subject of the testimony adduced in the prior proceeding." U.S. v. Titchell, 261 F.3d 348, 352 (3d Cir. 2001). The information that the RAM Defendants intend to pursue during Woodhouse's deposition relates to the same subject matter as the Woodhouse Affidavit. Jordan cannot fairly use Woodhouse's characterizations of her legal advice in support of her motion for bail while shielding further exploration of the nature of that advice during her deposition under the guise of the attorney-client privilege."; "The subject matter waiver is limited to the concerns expressed by Jordan that Mirra had committed fraud against her and intended to have her harmed, and that Jordan wanted to cease relying on Mirra and his associates for help with financial services.")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal DE

Chapter: 30.402

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.402

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "The Special Master correctly observed that there is a distinction between the results of the investigation and the investigation itself and that reliance on the facts learned in the investigation, when offered from a source other than the investigator, does not put the investigation in issue. . . . When an employer asserts the so-called Faragher/Ellerth defense, the adequacy of its investigation is relevant to the issue of the adequacy of its corrective actions. In this case, however, the adequacy of plaintiff's investigation simply has no relationship to any of the issues in the case.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY

Chapter: 30.402

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "Although Mitre's attaching the products of its investigation to its complaint seems to have been done more for public relations reasons than legal reasons, Mitre's pleading does not put the investigation in issue. The complaint is not evidence, and Mitre cannot offer it as such.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.402

Case Name: Willis v. Allstate Insurance Co., Civ. A. No. 2:13-cv-60-KS-MTP, 2014 U.S. Dist. LEXIS 64963 (S.D. Miss. May 12, 2014)
(analyzing the scope of waiver when a party relies on a coverage opinion on a first party insurance context; "Allstate seeks to use the February 19, 2013, coverage opinion to advance an advice-of-counsel defense but also seeks to invoke the attorney-client privilege to deny Plaintiff access to additional information that could provide important context for understanding the coverage opinion.")

Case Date Jurisdiction State Cite Checked
2014-05-12 Federal MS

Chapter: 30.402

Case Name: Hopovac v. Tyson Fresh Meats, Inc., No. C11-2070, 2013 U.S. Dist. LEXIS 3508, at *6-7 (N.D. Iowa Jan. 7, 2013)
(finding that an employee waived the attorney-client privilege protection for communications with her lawyer, by advising her doctor that her lawyer told her she could not return to work; "Hopovac's workers' compensation attorney apparently told her that she 'could no longer return to work,' or that she 'may not return to work.' By disclosing the fact that her attorney had told her she could not return to work to a third party, Hopovac waived her attorney/client privilege regarding that communication. . . . Accordingly, Hopovac must respond to questions regarding the subject matter of that communication. . . . That is, Hopovac must respond to questions regarding her attorney's statement that she could no longer return to work or may not return to work. Tyson's motion to compel will be granted to that extent." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-01-07 Federal IA B 7/13

Chapter: 30.402

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 903 (N.D. Ill. 2013)
(in a patent case, holding that a deposition witness waived privilege protection for communications with a lawyer, after the company's lawyer made the following statement at a deposition: "'I am not sure I agree with your characterization about waiver but to the extent you want to examine what Raj said I am going to permit that.'" (internal citation omitted); holding that the deposition testimony triggered a subject matter waiver; "TMC's [plaintiff] disclosure constitutes a complete subject matter waiver on the subject of Lot No. 1344985. In this case the scope of the waiver extends beyond the actual conversation disclosed in Dr. Kuzmich's [plaintiff's outside lawyer] deposition -- fairness dictates this broad scope. TMC's waiver of privilege over Dr. Kuzmich's conversation with Dr. Motheram [plaintiff's scientist] eight days before the close of the extended fact discovery period afforded TMC a tactical advantage in litigation. TMC disclosed Dr. Kuzmich's conversation with Dr. Motheram because it supports its position -- namely, it supports the position that Lot No. 1344985 was not procured using the New Process and is therefore not material to patentability -- but simultaneously seeks to conceal information that potentially does not support its position. Further discovery on Lot No. 1344985 is needed to settle the materiality of the lot.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 3/14

Chapter: 30.402

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp. Ltd., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *53 (D. Mass. Dec. 12, 2012)
(concluding that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "This court finds that the circumstances of this case present one of those situations in which fairness requires further disclosure of information related to the PWC audit. Here, CDP did not simply make an extrajudicial disclosure of PWC's interim audit report to the defendants in an effort to resolve the parties' differences regarding the royalty payments. Rather, CDP has put the audit report, the audit process, and PWC's status as an independent auditor directly at issue in this litigation. Under such circumstances, full disclosure is only fair.")

Case Date Jurisdiction State Cite Checked
2012-12-12 Federal MA B 9/13

Chapter: 30.402

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp. Ltd., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *49 (D. Mass. Dec. 12, 2012)
(concluding that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "There is no dispute in this matter that CDP waived any protection over PWC's interim audit report by disclosing the report to the defendants. Nor can there be any dispute that CDP put the audit report directly at issue in the litigation by relying on data and interviews conducted by PWC in support of its breach of contract and 93A claims, by seeking over $23 million in damages based on the conclusions reached by PWC in that report, and by seeking to hold the defendants liable for the cost of the audit pursuant to the terms of the Licensing Agreement. At issue is whether CDP's conduct resulted in an implied waiver of all documents and communications relating to PWC's audit.")

Case Date Jurisdiction State Cite Checked
2012-12-12 Federal MA B 9/13

Chapter: 30.402

Case Name: Mills v. State of Iowa, No. 3:10-cv-112-RP-RAW, 2012 U.S. Dist. LEXIS 127761 (S.D. Iowa Aug. 28, 2012)
(holding that a university's Board of Regents decided to waive the privilege, which triggered a subject matter waiver; "The Board intended to waive any attorney-client privilege or work-product protection which might have pertained to the content of the Stolar [Law firm] report and notes, by clear implication as to the report and expressly as to the notes. By producing its notes Stolar also waived any independent work-product objection it might have had to disclosure of the notes. The questions at this point are whether these waivers have resulted in a subject matter waiver with respect to Stolar's investigation and if so, the scope of the waiver."; "There is no reason to believe the State defendants or Stolar have sought to mislead or secure unfair advantage by waiving privilege and protection for the Stolar report and notes while objecting to a broader disclosure. There is not much case law on Rule 502, but one court has observed the Advisory Committee notes should not be taken to mean that in addition to a waiver being intentional, it must also be made 'in a selective, misleading and unfair manner' for a subject matter waiver to result."; "For two reasons the Court believes fairness dictates that what passed between Board members or staff and Stolar between the July 22, 2008 Board meeting and the September 18, 2008 Board meeting concerning the scope, conduct, and subject to the investigation should be disclosed under a limited subject matter waiver. First, such disclosure is consistent with the announced purpose of the intentional waiver pertaining to the Stolar report and notes – to be completely open and transparent about the conduct of the investigation and its independence. Second, though the Committee, through Ms. Campbell, has disclaimed any influence on the content or outcome of the investigation, the Committee did provide information to Stolar during the investigation and Stolar updated the Committee weekly on its work. Frequent communication and exchange of information affords an opportunity for influence, even unintended, which disclosure may rule out or support. Mr. Mills was fired as a result of the findings and conclusions in the Stolar report. He alleges these were in material respects untrue and defamatory; that he was a scapegoat. The integrity of the report is thus in issue. With the report and investigative notes in the domain of the case, Mr. Mills is entitled to discover the complete picture of what Stolar may have learned from the Board during the investigation."; "The Court will grant the motion to compel the disclosure of undisclosed communications and information that passed between any member of the Board or its staff and the Stolar firm from July 22, 2008 to September 18, 2008 which relate or refer to the following: (1) the purposes, scope, or direction of the investigation; (2) information provided or requested pertaining to the subject matter of the investigation; (3) the identification of persons who were involved in the subject matter of the investigation and any information concerning their involvement including specifically any mention of Mr. Mills; (4) any kind of assistance in the conduct of the investigation; or (5) the progress of the investigation including specifically progress reports.")

Case Date Jurisdiction State Cite Checked
2012-08-28 Federal IA

Chapter: 30.402

Case Name: QBE Ins. Corp. v. Jorda Enters., Inc., 286 F.R.D. 661, 666 (S.D. Fla. 2012)
(holding that a litigant cannot rely on privileged documents filed in camera to avoid Rule 11 sanctions without producing them to the adversary; "If QBE decides to rely on attorney-client privileged information at the evidentiary hearing, then it will have generated a waiver applicable to all other attorney-client communications relating to the same subject matter.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal FL B 10/13

Chapter: 30.402

Case Name: Wells v. Liddy, 37 F. App'x 53, 65 (4th Cir. 2002)
(finding that Liddy had intentionally disclosed "confidential communications between him and his lawyers" to support his motion for summary judgment, which amounts to "testimonial material" and thus causes the subject matter waiver)

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal

Chapter: 30.402

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509-10, 370 S.E.2d 296, 301 (Va. 1988)
("When a client communicates information to his attorney with the understanding that the information will be revealed to others, the disclosure to others effectively waives the privilege 'not only to the transmitted data but also as to the details underlying that information.' . . . In other words, 'The client's offer of his own or the attorney's testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of completeness.'" (citation omitted) (emphasis added))

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA B 3/16
Comment:

key case


Chapter: 30.403

Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
(holding that the federal government's disclosure of a statement in a document triggered a subject matter waiver; "Because Ms. Scott-Brier's statement knowingly remains in the record, the Court finds the disclosure voluntary."; "Next, like Ms. Scott-Brier's voluntarily disclosed impressions, comment TM25 involves the same subject matter -- namely, Solicitor's Office attorneys' legal interpretation of the Kuchel Act's balance between farming and waterfowl management. In fact, the only difference between the comment Federal Defendants voluntarily disclosed and the one they now seek protected -- comment TM25 -- is that the legal interpretation discussed in comment TM25 could potentially be interpreted as being more deferential to waterfowl management at the expense of farming/agricultural leasing."; "Fairness thus dictates comment TM25's disclosure. Indeed, while the Court respects and understands the importance of the attorney-client privilege, Federal Defendants cannot use the privilege as 'both a shield and a sword,' selectively disclosing only those 'limited aspect[s] of privileged communications' that may be most in line with their ultimate interpretation of the Kuchel Act, thereby providing them 'a tactical advantage in litigation.'")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 30.403

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
December 27, 2017 (PRIVILEGE POINT)

"Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis"

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege protection for communications with her lawyer about those facts.

But some decisions take a different, troubling, approach. In In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017), the court ordered former Trump campaign manager Paul Manafort's lawyer to testify before a grand jury. In addition to applying the crime-fraud exception, the court held that the lawyer waived her clients' privilege protection by making representations about historical facts in submissions to the DOJ. The court noted that the lawyer's submissions "made specific factual representations to DOJ that are unlikely to have originated from sources other than [Manafort and a colleague], and, in large part, were explicitly attributed to one or both [of their] recollections." Id. at *32. The court relied on this unsurprising circumstance in holding that the representations "impliedly waived the privilege as to [the clients'] communications with [their lawyer] to the extent that these communications related to the . . . Submissions' contents." Id.

A lawyer's disclosure of historical facts should not strip away privilege protection from the lawyer's communications with her client about those facts.

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 30.403

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 30.403

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 30.403

Case Name: Doe v. Baylor University, 2017 U.S. Dist. LEXIS 127509 (W.D. Tex. Aug. 11, 2017)
(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; concluding that Baylor's waiver of the privilege resulted in a broad subject matter waiver; "Because of these representations, and because of the level of detail publicly released about the investigation as a whole, the Court concludes that the waiver encompasses the entire scope of the investigation, and all materials, communications, and information provided to Pepper Hamilton as part of the investigation."; then inexplicably inviting Baylor to log communications it continues to assert as privileged; "To the extent Baylor seeks to withhold any specific communications with Pepper Hamilton or other counsel as responsive to Plaintiffs' requests for production as subject to attorney-client privilege, and not waived pursuant to this order, it must produce an itemized privilege log of these communications.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal TX

Chapter: 30.403

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 30.403

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 30.403

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 30.403

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 30.403

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
July 26, 2017 (PRIVIELGE POINT)

"Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II"

Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal investigation into self-dealing at WMATA. Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017).

Unlike the court's focus on the investigation's primary business motivation in rejecting the work product claim, the court's privilege analysis found that WMATA waived its privilege protection. The court noted that WMATA publicly released the final Cadwalader report -- which "disclosed counsel's legal and factual conclusions," and "cite[d] extensively to the interview memoranda throughout the entirety of the document." Id. at *18-19. The court acknowledged a Cadwalader lawyer's declaration that the interview memoranda references "were intended only for use by Cadwalader" -- but noted that "WMATA failed to remove the references . . . from the version of the [Cadwalader] Report that was made available to the public." Id. at *19 n.1. The court also noted that WMATA "has also used the [Cadwalader] Report to its advantage in this litigation" – by "us[ing] the [Cadwalader] Report and facts disclosed in that report to support its claims and defenses." Id. at *19. The court therefore found a subject matter waiver, and ordered WMATA to produce all of Cadwalader's 51 witness interview memoranda except the portions which (1) "contain subjects not covered by the [Cadwalader] Report," and (2) "material and other comments, if any, as to a lawyer's mental impressions." Id. at *20.

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 30.403

Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal AR

Chapter: 30.403

Case Name: SEC v. ITT Educational Services, Inc., No. 1:15-cv-00758-JMS-MJD, 2017 U.S. Dist. LEXIS 164 (S.D. Ind. Jan. 3, 2017)
(a bankruptcy trustee could not assert privilege after the pre-bankruptcy company had agreed to waive the privilege; "The winding saga in this SEC enforcement action has made its way before the Court on Plaintiff's unopposed Motion to Compel Discovery. Plaintiff alleges that Defendants fraudulently concealed the poor performance of a student loan program from investors in violation of federal securities laws. . . . Part of Defendants' defense rests upon the legal advice they received about the loan program. As a consequence, each of the parties, by counsel, executed an agreement waiving attorney client-privilege as to certain subjects."; "'ITT is deemed to have waived the attorney-client privilege as to the Waived Subjects: . . .'"; "The Court finds that Defendant ITT knowingly and intentionally waived its privilege as to the topics identified in the Protective Order, excerpted above. Therefore, the Trustee may not reassert the waived privilege, and Plaintiff is entitled to depose Blankenship and conduct discovery into the attorney-client communications for which the privilege has been waived."; "The genie is out of the bottle; Pandora's box has been opened; '[t]he Moving Finger writes; and, having writ, Moves on.' Omar Khayyám, The Rubáiyát of Omar Khayyám 71. . . . Each of these maxims aptly describes the issue before the Court. It takes no stretch of the imagination to foresee the games that counsel would play if they were permitted to revoke an intentional and knowing waiver of attorney-client privilege as the Bankruptcy Trustee has sought to do here.")

Case Date Jurisdiction State Cite Checked
2017-01-03 Federal ID
Comment:

key case


Chapter: 30.403

Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
("Bio-Rad contends these declarations do not disclose any privileged communications -- that they merely reveal certain 'historical facts necessary to rebut Plaintiff's claims,' and that they at most reveal facts that were either disclosed to Bio-Rad's outside auditors at the time (thus waiving any privilege) or were never privileged. . . . Yet Plaintiffs have highlighted at least three examples in the Drapeau Declaration that appear to implicate privilege: (1) his statement that Wadler [] offered 'far more than management was willing to pay' to settle with Life Technologies; (2) his statement that Wadler objected to Bio-Rad's accrual for the Life Technologies Audit prior to the filing of a Form 10-K; and 3) his statement that Wadler 'took actions to undermine Bio-Rad's new Compliance Officer.'. . . To the extent that these statements disclose privileged communications between Wadler and Bio-Rad, any privilege as to these communications or communications on the same subject matter has been waived (particular as Bio-Rad has now expressly stated that nothing in these declarations is protected by privilege). Further, the response and declarations submitted in the DOL broadly accuse Wadler of misconduct and incompetence even while Bio-Rad attempts to prevent Wadler from introducing any privileged or confidential communications to show that these allegations are pretextual. That is the sort of unfairness that Rule 502 does not permit. Accordingly, the Court finds that the waiver that results from Bio-Rad's submissions to the DOL extends to communications on the topics addressed in those documents relating to his alleged misconduct and incompetence.")

Case Date Jurisdiction State Cite Checked
2016-12-20 Federal CA

Chapter: 30.403

Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
(holding that disclosure to the government waived privilege protection; also finding that the company waived the privilege by disclosing privileged communications to the department of labor and rejecting the company's argument that the disclosure only included historical facts; "The primary disclosure in the SEC Proceeding that relates to Wadler's claims in this action is the DPW Presentation. Although that document was filed under seal in this action, by disclosing it to the SEC and DOJ there is no doubt that Bio-Rad waived any privilege it might have claimed as to the document itself. Indeed, Bio-Rad now concedes that it has waived attorney-client privilege as to this document. See Reply at 7 ('For the purposes of this Motion, Bio-Rad recognizes that its report to the government of its investigation is not privileged.'). The Court further finds that under Rule 502(a), fairness requires that the waiver extend beyond the DPW Presentation because Bio-Rad has repeatedly relied on that document as a sword by citing to its conclusion that Wadler's concerns about possible FCPA violations in China were unjustified."; "Based on the reasoning of IGT [IGT v. Alliance Gaming Corp., No. 04-cv-1676 RCJ (RJJ), 2006 U.S. Dist. LEXIS 72165, 2006 WL 8071393 (D. Nev. Sept. 28, 2006)], the Court concludes that the disclosure of the DPW Presentation, like the disclosures in IGT, resulted in waiver of attorney-client privilege not only as to the document itself but also any privileged communications about the specific matters disclosed in the DPW Presentation. For example, the DPW repeatedly references specific issues Wadler brought to the attention of the Audit Committee relating to possible FCPA violations in China. At a minimum, then, there is a waiver as to Wadler's Audit Committee Memo and any other communications between Wadler and Bio-Rad relating to those concerns. The DPW Presentation also references communications between outside counsel and Wadler and between outside counsel and Bio-Rad as to his concerns. Therefore, the waiver extends to these communications to the extent they are related to the same subject matter as the communications disclosed in the DPW Presentation. As a practical matter, then, this waiver extends to privileged communications and confidential information that Wadler reasonably believes are necessary to show that he had an objectively reasonable belief that Bio-Rad was violating the FCPA in China in the ways suggested in the Audit Committee Memo and addressed in the DPW Presentation."; "This case differs from General Motors [In re General Motors LLC Ignition Switch Litigation, 80 F. Supp. 3d 521 (S.D.N.Y. 2015)] in that the DPW Presentation does not just state conclusions; it also describes the underlying investigation by outside counsel in great detail. Moreover, in contrast to the facts of that case, Bio-Rad is poised to use the conclusions of outside counsel offensively at trial to defeat Wadler's retaliation claim while precluding Wadler from presenting related communications to rebut this evidence, as discussed above. Therefore, the General Motors case is not on point.")

Case Date Jurisdiction State Cite Checked
2016-12-20 Federal CA

Chapter: 30.403

Case Name: In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. At *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

Case Date Jurisdiction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 30.403

Case Name: Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. at *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

Case Date Jurisdiction State Cite Checked
2015-08-10 Federal MA
Comment:

key case


Chapter: 30.403

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "Although Mitre's attaching the products of its investigation to its complaint seems to have been done more for public relations reasons than legal reasons, Mitre's pleading does not put the investigation in issue. The complaint is not evidence, and Mitre cannot offer it as such.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.403

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.403

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "The Special Master correctly observed that there is a distinction between the results of the investigation and the investigation itself and that reliance on the facts learned in the investigation, when offered from a source other than the investigator, does not put the investigation in issue. . . . When an employer asserts the so-called Faragher/Ellerth defense, the adequacy of its investigation is relevant to the issue of the adequacy of its corrective actions. In this case, however, the adequacy of plaintiff's investigation simply has no relationship to any of the issues in the case.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY

Chapter: 30.403

Case Name: Harbinger F&G, LLC v. OM Grp. (UK), No. 12-CV-5315 (RA) (AJP), 2013 U.S. Dist. LEXIS 132009, at *17 (S.D.N.Y. Aug. 22, 2013)
(in a report by a Special Master to a United States Magistrate Judge, holding that plaintiff's disclosure of some privileged document did not cause a subject matter waiver; "I find . . . that this isolated disclosure of Harbinger's strategy does not constitute the misleading use of privileged or protected communications or information that in fairness requires the production of all communications containing counsel's legal opinion and advice regarding the requirements of the SPA [governing contract]."; not addressing a possible additional requirement that the disclosing litigant actually use the disclosed document)

Case Date Jurisdiction State Cite Checked
2013-08-22 Federal NY B 4/14

Chapter: 30.403

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *48 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; rejecting Deen's functional equivalent argument; "Waiver thus has occurred, so defendants must disclose all of Gerard's [outside counsel, who had both law-related and human resources responsibilities] communications regarding Jackson's [Plaintiff] complaints, where these individuals were in the loop.")

Case Date Jurisdiction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 30.403

Case Name: Page v. Unimerica Ins. Co., Case No. 3:12-cv-103, 2013 U.S. Dist. LEXIS 4575, at *9 (S.D. Ohio Mar. 29, 2013)
("As noted above, in support of her opposition to Johnson Electric's present Motion, Ms. Page voluntarily disclosed correspondence between herself and her counsel Mr. Brown. Because a client's voluntary disclosure of confidential communications is inconsistent with an assertion of the attorney-client privilege, such voluntary disclosure waives a claim of privilege with regard to communications on the same subject matter.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal OH B 3/14

Chapter: 30.403

Case Name: Lawless v. Del. River Port Auth., Civ. A. No. 11-7306, 2013 U.S. Dist. LEXIS 6965, at *6, *7, *9, *9-10 (E.D. Pa. Jan. 16, 2013)
("Lawless also argues that, even if the attorney-client privilege applies, it has been waived. This assertion is based on the following exchange in Matheusen's deposition: 'Q. Do you recall whether any of the Commissioners expressed their own views as to whether they thought that the termination of Mr. Lawless was appropriate?' 'A. I recall that there were questions as to whether or not - how it was done, why it was done. There were probably some Commissioners who expressed reservations.'"; "The Court therefore concludes that privilege has been waived with respect to the fact '[t]here were probably some Commissioners who expressed reservations' about terminating Lawless.'"; "However, Matheussen's statement does not warrant any further disclosure."; "The statement that '[t]here were probably some Commissioners who expressed reservations' does not require extending the waiver beyond the statement itself. It added little, if anything, to what was already a matter of record in that the board minutes previously issued state that four Commissioners voted against the resolution which terminated Lawless."; "Finally, the Port Authority is not putting forward privileged information in a selective, misleading, and unfair manner so as to present a one-sided story to the Court. If anything, Matheussen's statement hurts the Port Authority's case because it shows that some Commissioners felt that Lawless's termination may not have been justified.")

Case Date Jurisdiction State Cite Checked
2013-01-16 Federal PA B 7/13

Chapter: 30.403

Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that the company and Baker Botts waived privilege protection by disclosing the investigation results to the SEC, and therefore could not withhold them from the former officer; "Brady [former officer] asserts that materials related to the Phase II investigation were provided to the SEC, thereby waiving the attorney-client privilege as to Categories 5 and 6. . . . With regard to the Phase II materials, i2 and Baker Botts concede that they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning Phase II, in addition to interview observations and summaries, exhibits used during witness interviews, and other documents uncovered during its Phase II investigation. Indeed, they state that pursuant to a confidentiality agreement with Brady, he will receive all of the materials presented to the SEC. . . . i2 and Baker Botts contend that despite the disclosure of Phase II materials to the SEC, they did not waive the attorney-client privilege; however, to the extent they have waived attorney-client privilege, they urge the court to adopt the Eighth Circuit's selective waiver doctrine."; "As noted, the Fifth Circuit has yet to adopt the selective waiver doctrine. Moreover, this court is persuaded by the reasoning of the great weight of authority which has declined to adopt the selective waiver doctrine. Therefore, the court finds that i2 and Baker Botts waived the attorney-client privilege as to Categories 5 and 6 by disclosing Phase II privileged information to a third-party."; finding a subject matter waiver; "Brady argues that i2 and Baker Botts' waiver of attorney-client privilege as to the Phase I Report and the Phase II investigation extends to the entire subject matter related to the disclosures."; "The disclosure of any significant portion of a confidential communication waives the privilege as to the whole.'. . . Moreover, waiver of an attorney-client communication waives the privilege as to all other communications relating to the same subject matter. . . . Here, Brady disclosed the Phase I Report, which summed up Baker Botts' entire Phase I investigation, to Deloitte and Touche. Additionally, they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning the ultimate findings of Phase II, interview observations and summaries, and exhibits used during witness interviews. Based on that evidence, the court finds that these disclosures amount to a significant portion of attorney-client privileged information, and thus, the waiver of attorney-client privilege extends to all responsive documents relating to the Phase I and Phase II subject matter. Accordingly, the attorney-client privilege has been waived as to all documents responsive to Categories 3, 4, 5, and 6.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 30.403

Case Name: In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal
Comment:

key case


Chapter: 30.404

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2018 U.S. Dist. LEXIS 14851 (S.D.N.Y. Jan. 29, 2018)
(holding that a plaintiff lawyer's questionnaire and prospective clients' responses did not deserve privilege protection, but that emails about the lawyer's advertisements deserved work product protection; "Lead Counsel argue that the E-mails [e-mails between Lead Counsel and TCA regarding the advertising campaign ('the 'E-mails'), which Lead Counsel contends are protected by the work-product doctrine] are protected by the work-product doctrine, which 'provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.'. . . New GM only half-heartedly argues otherwise . . . which is wise as the communications were created by Hagens Berman or TCA (at Hagens Berman's request) as part of counsel's efforts to find named plaintiffs 'in anticipation of litigation'. . . Instead, New GM's principal argument is that the protections of the doctrine were waived because there were ninety-four e-mails between TCA and Lead Counsel and TCA disclosed ninety of them to New GM in responding to an earlier subpoena (a response that was allegedly made '[i]n coordination with Lead Counsel'). . . . That may well be so, but it is ultimately beside the point because disclosure of some materials results in a subject matter waiver of 'related, protected' materials 'only in those 'unusual situations in which fairness requires a further disclosure . . . in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.' In re Gen. Motors LLC Ignition Switch Litig., 80 F. Supp. 3d 521, 533 (S.D.N.Y. 2015) (quoting Fed. R. Evid. 502, Committee Notes). Here, there is no suggestion, let alone evidence, that the partial disclosure — which was made by a third party, not by Plaintiffs or Lead Counsel — was done selectively or strategically so that Plaintiffs might gain an unfair advantage over New GM. The Court therefore finds that TCA's earlier disclosure does not call for production of the remaining four E-mails.")

Case Date Jurisdiction State Cite Checked
2018-01-29 Federal NY
Comment:

key case


Chapter: 30.404

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "The Ninth Circuit has plainly held that a party may not selectively waive the attorney-client privilege. It has held that voluntary disclosure to one waives the attorney-client privilege as to the world at large. In re Pac. Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012). There, the court noted that only the Eighth Circuit had adopted the selective waiver doctrine in its decision in Diversified Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc). Id. at 1127. Every other circuit to have addressed the issue had rejected the doctrine of selective waiver. Id. The Ninth Circuit declined to adopt the selective waiver theory finding that, if it was 'to unmoor a privilege from its underlying justification' it would be failing to construe the privilege narrowly.' Id. at 1128. It observed that since the Eighth Circuit decided Diversified, there had been multiple legislative attempts to adopt the theory of selective waiver which had failed. Id. It cited the report of the Advisory Committee on Evidence Rules and portions of the Congressional Record in which Congress declined to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government. Id. As Congress had declined to broadly adopt a new privilege protecting disclosures of attorney-client privileged materials to the government, the Ninth Circuit also declined to do so. Id.")

Case Date Jurisdiction State Cite Checked
2016-05-05 Federal NV

Chapter: 30.404

Case Name: Freedman v. Weatherford International Ltd., 12 Civ. 2121 (LAK) (JCF), 2014 U.S. Dist. LEXIS 102248 (S.D.N.Y. July 25, 2014)
(denying plaintiffs' effort to obtain documents created during a company's audit committee's investigation; "In accordance with my orders in Dobina, the defendants have produced to the plaintiffs here all documents actually disclosed to the SEC, as well as all factual materials explicitly referenced in those disclosures. The plaintiffs now seek all remaining documents withheld on the basis of attorney client privilege and work product protection, arguing that the defendants waived all privilege and protection over subject matter related to the investigation as a result of Weatherford's 'comprehensive and one-sided disclosure' to the SEC. (Plaintiffs' Motion to Compel the Production of Documents Concerning the Audit Committee Investigation. . . . The plaintiffs clarify that they do not seek opinion work product, but rather the all fact-based portions of interview notes, memoranda, attorney e-mails, and other investigative materials, 'regardless of whether they were produced to the SEC.' (Plaintiffs' Omnibus Reply to Defendants' Oppositions to Plaintiffs' Motions to Compel (1) Reports on Electronic Documents Searches, (2) the Production of Documents Concerning the Audit Committee Investigation, and (3) the Production of Documents Concerning the Latham Investigation."; "While the plaintiffs highlight the depth and breadth of the Audit Committee investigation, leading to the 'disclos[ure] [of] minute details and factual conclusions' to the SEC . . . Those very factual conclusions and details have already been produced pursuant to my previous orders in Dobina. This is not a case where Weatherford appears to be 'pick[ing] and choos[ing] among [its] opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or [] invok[ing] the privilege as to communications whose confidentiality [it] has already compromised for [its] own benefit.'"; reaching the same conclusion about an investigation conducted by the Latham law firm)

Case Date Jurisdiction State Cite Checked
2014-07-25 Federal NY

Chapter: 30.404

Case Name: Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), MDL No. 1616, Case No. 04-MD-1616-JWL, 2013 U.S. Dist. LEXIS 128353, at *39-40 (D. Kan. Sept. 5, 2013)
(holding that Dow's disclosure of some information about Dow's investigation into possible misconduct caused a subject matter waiver; "The undersigned finds that fairness demands that DAPs [direct-action plaintiffs] be allowed to examine the whole picture showing what allegations Barbour reported to Dow in 2004. At Dow's [defendant] explicit request, the court ruled that the parties could take discovery into whether Barbour [Dow's former employee] reported antitrust concerns to Dow in 2004, as opposed to for the first time during her deposition in 2010. . . . The undersigned has reviewed the Ella [Barbour/s former lawyer] memorandum in camera and finds that it contains information specifically addressing this topic which is favorable to DAPs' theory of events -- information that must be revealed to avoid a misleading presentation of the evidence to the disadvantage of DAPs. Thus, the undersigned finds that the Ella memorandum must be produced to DAPs under Rule 502, despite any privilege protection (including work-product protection or a joint-defense/common-interest privilege) which might otherwise attach to it." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-09-05 Federal KS B 4/14

Chapter: 30.404

Case Name: Pacing Techs., LLC v. Garmin Int'l, Inc., Case No. 12-CV-1067 BEN (WMc), 2013 U.S. Dist. LEXIS 127041 (S.D. Cal. Sept. 5, 2013)
(holding the defendant's production of some privileged documents caused a subject matter waiver under Rule 502; not discussing Rule 502's apparent additional requirement that a disclosing litigant used the documents; "The Court does not have enough information before it to decide whether Plaintiff attempted to gain an unfair or misleading advantage over Garmin by producing the collection of documents it did produce. Nevertheless, it is clear from the briefing that Pacing intended to use the August 4, 2005 draft application and communications discussing that draft as a sword to establish a priority date predating the filing date of Garmin's '206 patent. Thus, fairness dictates that documents showing the preparation and finalization of the August 4, 2005 draft patent application must be produced because they share the same subject matter as the attorney-client privileged communications voluntarily disclosed by Plaintiff and present an accurate history of the subject patent application's development and completion. . . . In keeping with Rule 502(a)'s intent to promote a balanced and complete presentation of evidence, the Court orders the documents below be produced by Pacing because they are directly related to the preparation, finalization and filing of the August 4, 2005 draft patent application." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-09-05 Federal CA B 4/14

Chapter: 30.404

Case Name: Harbinger F&G, LLC v. OM Grp. (UK), No. 12-CV-5315 (RA) (AJP), 2013 U.S. Dist. LEXIS 132009, at *17 (S.D.N.Y. Aug. 22, 2013)
(in a report by a Special Master to a United States Magistrate Judge, holding that plaintiff's disclosure of some privileged document did not cause a subject matter waiver; "I find . . . that this isolated disclosure of Harbinger's strategy does not constitute the misleading use of privileged or protected communications or information that in fairness requires the production of all communications containing counsel's legal opinion and advice regarding the requirements of the SPA [governing contract]."; not addressing a possible additional requirement that the disclosing litigant actually use the disclosed document)

Case Date Jurisdiction State Cite Checked
2013-08-22 Federal NY B 4/14

Chapter: 30.404

Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *15-16 (S.D.N.Y. July 24, 2013)
(in a first party insurance context, holding that under Rule 502 an intentional production of protected documents did not result in a subject matter waiver; "Swift's disclosures in this case have not resulted in the unfairness contemplated by Rule 502(a). At the outset, the selective production of the Coverage Emails has not afforded Swift any tactical advantage in this litigation. Indeed, those emails are not favorable to Swift's case and consequently do not have the potential to be used selectively at trial to Alvada's detriment. The Coverage Emails, in fact, reveal only that Swift had received legal advice that the situation in Libya likely did not give rise to a valid coverage claim under its war-risk policies. Even if one were to assume that this constitutes an admission by a party-opponent, see Fed. R. Evid. 801(d)(2)(D), Alvada has failed to demonstrate that Swift intends to rely on the Coverage Emails or that any unfair prejudice has resulted from their partial disclosure. Thus, Swift's production of the Coverage Emails does not warrant compulsory disclosure of other privileged documents related to the same subject matter.")

Case Date Jurisdiction State Cite Checked
2013-07-24 Federal NY B 4/14

Chapter: 30.404

Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *12 (S.D.N.Y. July 24, 2013)
(in a first party insurance context, holding that under Rule 502 an intentional production of protected documents did not result in a subject matter waiver; "[R]emarkably few lawyers seem to be aware of the Rule's existence despite its enactment nearly five years ago.")

Case Date Jurisdiction State Cite Checked
2013-07-24 Federal NY B 4/14

Chapter: 30.404

Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *15 (S.D. Ind. June 3, 2013)
("The automatic subject-matter waiver was abolished by Congress before the start of this litigation, see Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1026 (7th Cir. 2012), so the disclosure of privileged material does not necessarily waive privilege for documents of the same subject matter. Federal Rule of Evidence 502 governs these waivers.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 30.404

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *31 (E.D. Va. Dec. 3, 2012)
("[T]here is nothing in Fed. R. Evid. 502 that limits such a waiver resulting from his attempt to blame counsel. (footnote omitted) Compare Fed. R. Evid. 502(a) with Rhone-Poulenc Rorer, 32 F.3d at 863. 'Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney's advice might affect the client's state of mind in a relevant manner. The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney-client communication.' Rhone-Poulenc Rorer, 32 F.3d at 863 (emphasis added).")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 30.404

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *14 (E.D. Va. Dec. 3, 2012)
("'By requiring a fairness analysis, Congress recognized that "[t]here is no bright line test for determining what constitutes the subject matter of a waiver, rather courts weigh the circumstances of the disclosure, the nature of the legal advice sought and the prejudice to the parties in permitting or prohibiting further disclosures."' Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480, 503 (2009) (quoting Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005)).")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 30.404

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *12-13 (E.D. Va. Dec. 3, 2012)
("These authorities must be considered in conjunction with the 2008 Amendments to Fed. R. Evid. 502(a), which limits the scope of waiver. (footnote omitted) Rule 502(a) establishes three requirements before a document comes within the scope of a waiver: (1) the waiver must be intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and, (3) they ought in fairness to be considered together. In other words, a waiver is limited in scope.")

Case Date Jurisdiction State Cite Checked
2012-12-02 Federal VA

Chapter: 30.404

Case Name: Mills v. State of Iowa, No. 3:10-cv-112-RP-RAW, 2012 U.S. Dist. LEXIS 127761 (S.D. Iowa Aug. 28, 2012)
(holding that a university's Board of Regents decided to waive the privilege, which triggered a subject matter waiver; "The Board intended to waive any attorney-client privilege or work-product protection which might have pertained to the content of the Stolar [Law firm] report and notes, by clear implication as to the report and expressly as to the notes. By producing its notes Stolar also waived any independent work-product objection it might have had to disclosure of the notes. The questions at this point are whether these waivers have resulted in a subject matter waiver with respect to Stolar's investigation and if so, the scope of the waiver."; "There is no reason to believe the State defendants or Stolar have sought to mislead or secure unfair advantage by waiving privilege and protection for the Stolar report and notes while objecting to a broader disclosure. There is not much case law on Rule 502, but one court has observed the Advisory Committee notes should not be taken to mean that in addition to a waiver being intentional, it must also be made 'in a selective, misleading and unfair manner' for a subject matter waiver to result."; "For two reasons the Court believes fairness dictates that what passed between Board members or staff and Stolar between the July 22, 2008 Board meeting and the September 18, 2008 Board meeting concerning the scope, conduct, and subject to the investigation should be disclosed under a limited subject matter waiver. First, such disclosure is consistent with the announced purpose of the intentional waiver pertaining to the Stolar report and notes – to be completely open and transparent about the conduct of the investigation and its independence. Second, though the Committee, through Ms. Campbell, has disclaimed any influence on the content or outcome of the investigation, the Committee did provide information to Stolar during the investigation and Stolar updated the Committee weekly on its work. Frequent communication and exchange of information affords an opportunity for influence, even unintended, which disclosure may rule out or support. Mr. Mills was fired as a result of the findings and conclusions in the Stolar report. He alleges these were in material respects untrue and defamatory; that he was a scapegoat. The integrity of the report is thus in issue. With the report and investigative notes in the domain of the case, Mr. Mills is entitled to discover the complete picture of what Stolar may have learned from the Board during the investigation."; "The Court will grant the motion to compel the disclosure of undisclosed communications and information that passed between any member of the Board or its staff and the Stolar firm from July 22, 2008 to September 18, 2008 which relate or refer to the following: (1) the purposes, scope, or direction of the investigation; (2) information provided or requested pertaining to the subject matter of the investigation; (3) the identification of persons who were involved in the subject matter of the investigation and any information concerning their involvement including specifically any mention of Mr. Mills; (4) any kind of assistance in the conduct of the investigation; or (5) the progress of the investigation including specifically progress reports.")

Case Date Jurisdiction State Cite Checked
2012-08-28 Federal IA

Chapter: 30.404

Case Name: Seyler v. T-Systems North America, Inc., 10 Misc. 7 (JGK), 2011 U.S. Dist. LEXIS 6065 (S.D.N.Y. Jan. 21, 2011)
("Unlike the scope of the privilege, the waiver question is governed by Federal Rule of Evidence 502(a), which applies when a 'disclosure is made in a Federal proceeding.' Under Rule 502(a), attorney-client privilege is only waived as to undisclosed communications if '(1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.' Fed. R. Evid. 502(a).")

Case Date Jurisdiction State Cite Checked
2011-01-21 Federal NY

Chapter: 30.501

Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal AR

Chapter: 30.501

Case Name: EEOC v. Sterling Jewelers, Inc., 08-CV-0706-RJA-MJR, 2017 U.S. Dist. LEXIS 3011 (W.D.N.Y. Jan. 3, 2017)
(analyzing the waiver implications of defendant's inadvertent production of over 1,000 documents; the Special Master found a waiver because defendant had waited too long to retrieve the documents; also noting that the defendant quoted some of the privileged documents of the subject matter waiver; "Because Sterling is not seeking to affirmatively use any of the privileged information for its own benefit in this litigation, subject-matter waiver does not apply. While Sterling did file the Class Determination Award in order to effectuate its appeal of the Southern District's denial of the motion to vacate, none of the privileged information quoted therein was used in support of Sterling's factual or legal arguments. Indeed, the quoted information is not beneficial to Sterling's position either in this lawsuit or in the Arbitration. Therefore, it cannot be said that Sterling is attempting to use the quoted information as a sword, while at the same time shielding the remainder of the documents from disclosure and use by the opposing party. Moreover, protection of the remainder of the documents would not be 'manifestly unfair' to the EEOC. Since Sterling is not attempting to use the disclosed portions in support of any claim or defense it is asserting against the EEOC, the EEOC is not in need of the remainder of the documents in order to adequately respond or defend its position. Finally, any benefit that Sterling were to receive from the limited disclosure, by virtue of their appeal, would occur in the Arbitration involving Claimants and not in this lawsuit involving the EEOC. Thus, the EEOC cannot demonstrate that it is prejudiced in any manner by the continued protection of those portions of the documents that were not quoted in the Class Determination Award. . . . For these reasons, Sterling has not waived privilege as to the portions of the July 2006 Compliance Management Report, the 2008 Post-Merit Field Operations EEOC Analysis and the 2012 Merit Payout Alternative Spreadsheet that were not quoted in the Class Determination Award.")

Case Date Jurisdiction State Cite Checked
2017-01-03 Federal NY
Comment:

key case


Chapter: 30.501

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
(finding that there had been no subject matter waiver through the disclosure of protected documents, because its owner didn't have any intent to use them; "Union Pacific has shown that Exhibits G, H, and I were introduced as evidence in the Rent Action over its objection, were used against it in that case, and will not be used by Union Pacific in this case. . . . Kinder Morgan also states that it does not intend to use Exhibits G-I in this case. . . . Given these facts, the Court cannot conclude that Defendants are 'intentionally put[ting] protected information into [this] litigation in a selective, misleading and unfair manner' as required by the Advisory Committee Note. Thus, even if the Court were to find that the documents were disclosed voluntarily in this litigation -- a conclusion that is not obvious given that they were admitted in the Rent Action over Union Pacific's objection and, according to Plaintiffs, are now available in the public record -- Plaintiffs cannot satisfy the Rule 502(a)(3) requirement that disclosure of Exhibits A-F 'ought in fairness' to be required. As another judge of this Court has noted, a party's avowal that it does not intend to use a privileged communication in litigation eliminates the need for subject matter waiver under Rule 502 because 'the party asserting the privilege is not selectively and misleadingly presenting the disclosed materials as evidence.'")

Case Date Jurisdiction State Cite Checked
2016-12-21 Federal AZ

Chapter: 30.501

Case Name: In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. At *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

Case Date Jurisdiction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 30.501

Case Name: Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. at *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

Case Date Jurisdiction State Cite Checked
2015-08-10 Federal MA
Comment:

key case


Chapter: 30.502

Case Name: Cave Consulting Group, Inc. v. Optuminsight, Inc., Case No. 15-cv-03424-JCS, 2017 U.S. Dist. LEXIS 183672 (N.D. Cal. Nov. 6, 2017)
(entering a Rule 502 order preventing a subject matter waiver based on disclosure privileged communications; "Based on the parties' representations and concerns, the Court hereby ORDERS that disclosure of documents or testimony relating to one of the seven topics listed at page 16, lines 10 through 15, of the Court's December 29, 2016 order does not effect a further subject matter waiver of attorney-client privilege, work product protection, or other recognized privilege or protection, so long as such disclosure is made in a good faith effort to comply with OptumInsight's existing waiver of privilege recognized by the Court. However, any such disclosure is a waiver as to the document or testimony actually disclosed, subject to the clawback provision of Rule 26. In case of a dispute as to whether OptumInsight or its witnesses disclosed documents or testimony in good faith, the burden would be on CCGroup to demonstrate that such disclosure was not made in good faith.")

Case Date Jurisdiction State Cite Checked
2017-11-06 Federal CA
Comment:

key case


Chapter: 30.602

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(analyzing the waiver impact of a general partner disclosing privileged documents to a friend; finding a waiver, but not a subject matter waiver; "In light of the fact that the scope of the waiver is construed narrowly, the Court finds that Igra only waived the attorney-client privilege with respect to the content of these specific emails, and not all communications concerning the subject matter of the lawsuit. To the extent that the content of these emails is included in any of the withheld documents, TRT shall produce the portions of those documents that include the waived content. However, that is the full extent of the waiver. The Court will not construe these limited emails that briefly discuss some facts of the claims against Lucky into a broad waiver of all attorney-client privileged communications concerning the subject of the lawsuit against Luckey.")

Case Date Jurisdiction State Cite Checked
2016-05-17 Federal CA

Chapter: 30.602

Case Name: R. Bird and Associates, Inc. v. Fernando L. Sumaza & Co., Inc., Op. No. 130844, Dkt. No. SUCV201400827C, 2015 Mass. Super. LEXIS 72 (Mass. Super. Ct. July 14, 2015)
(finding that a letter to an adversary did not waive privilege protection; "Sumaza argues in its motion that, by the very fact of the legal position attorney Kneeland asserted in his letter, viz., the contention that Alvarez Bracero was the rightful general partner of the Juncos Partnership, the plaintiff should be deemed to have waived the attorney-client privilege as to the entire subject matter of the letter. The Court does not agree. It is true that statements which partially disclose private lawyer-client communications may in some circumstances operate to waive privilege as to the balance of the communication. . . . That, however, is clearly not what transpired in the present case. Attorney Kneeland here transmitted a demand letter to a party adverse to his client, advancing a legal position as the precursor to the commencement of a lawsuit. Kneeland disclosed no portions of any confidential communications with his client in this letter; and the kind of documented position-taking by counsel that such a letter evidences is coin of the realm in the run-up to civil litigation. The transmittal of this letter to Sumaza cannot reasonably be deemed to reflect an intentional relinquishment of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-07-14 State MA
Comment:

key case


Chapter: 30.602

Case Name: In re Baugher, No. 353909/P, 2013 N.Y. Slip Op. 51622(U), at 8 (N.Y. Sur. Ct. Sept. 30, 2013)
(analyzing the fiduciary exception; "As to disclosure to a relative or friend, the test to determine whether the privilege was waived is whether the participation of a third person was 'reasonably necessary for the protection of the client's interests.'" (citation omitted); "The estate has failed to establish that there was an agency relationship. The court makes no finding of fact as to the capacity of Phebe Baugher or her dependency on others, except for the purpose of determining the motions for pretrial disclosure."; "The privilege was waived by disclosure of the correspondence. The court declines to find that disclosure was waived as to all privileged communications on the same subject.")

Case Date Jurisdiction State Cite Checked
2013-09-30 State NY B 5/14

Chapter: 30.602

Case Name: In re West, Case No. 11 15594 BFK, Ch. 7 2012 Bankr. LEXIS 1673, at *14-15, *15-16 (Bankr. E.D. Va. Apr. 17, 2012)
("Subject matter waivers have generally been applied where a client is seeking some tactical advantage by a partial waiver; where, for example, a client asserts the 'advice of counsel' as a defense to a claim. See, e.g., LifeNet, Inc. v. Musculoskeletal Transplant Foundation, Inc., 490 F.Supp.2d 681, 685 (E.D. Va. 2007) ('"Once a party announces that it will rely on advice of counsel . . . in response to an assertion of willful infringement, the attorney-client privilege is waived. The widely applied standard for determining the scope of a waiver of attorney-client privilege is that the waiver applies to all other communications relating to the same subject matter"' (citing In re EchoStar Communs. Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006) (emphasis in original LifeNet opinion))."; "There is an important limitation on subject matter waivers, though. In the Christian Coalition case, the Court described this limitation as follows: '[T]he Fourth Circuit recognizes the concept of subject matter waiver; yet, subject matter waiver is appropriate only when the party seeking the privilege previously waived the attorney-client privilege to make some tactical use of the documentation. When the party simply relates the communication to a third person, and does not try to use the documentation to its advantage in litigation, then a court's finding subject matter waiver would be an error of law.' FEC v. Christian Coalition, 178 F.R.D. at 74.")

Case Date Jurisdiction State Cite Checked
2012-04-17 Federal VA

Chapter: 30.602

Case Name: In re West, Case No. 11 15594 BFK, Ch. 7 2012 Bankr. LEXIS 1673, at *17 (Bankr. E.D. Va. Apr. 17, 2012)
(holding that the potential buyer of a company waived the attorney client privilege by disclosing her lawyer's email to the potential seller, but that the waiver did not trigger a subject matter waiver; "Here, the Court cannot say that the Ebel e-mail was put to any tactical use by Ms. West. Ms. West was simply trying to move the negotiations along, and she forwarded her attorney's e mail to Ms. Holme in an effort to do so. This is not a tactical use of the Ebel e mail, such that it would make it unfair not to compel the disclosure of the rest of the attorney client privileged materials in Sands Anderson's file.")

Case Date Jurisdiction State Cite Checked
2012-04-17 Federal VA B 4/13

Chapter: 30.602

Case Name: In re West, Case No. 11 15594 BFK, Ch. 7 2012 Bankr. LEXIS 1673, at *16 (Bankr. E.D. Va. Apr. 17, 2012)
("'[C]ourts apparently retain discretion not to impose full waiver as to all communications on the same subject matter where the client has merely disclosed a communication to a third party, as opposed to making some use of it.' United States v. Jones, 696 F.2d 1069, 1072 (4th Circuit 1982) (citing In re Sealed Case, 676 F.2d 793, 809 n.54, 219 U.S. App. D.C. 195 (D.C. Cir. 1982)). . . . The D.C. Circuit's opinion in In re Sealed Case was cited with approval by the Fourth Circuit in the cases of United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982), and Sheet Metal Workers Int'l Ass'n v. Sweeney, 29 F.3d 120, 125-26 (4th Cir. 1994).")

Case Date Jurisdiction State Cite Checked
2012-04-17 Federal VA

Chapter: 30.602

Case Name: In re Alexandria Priftis West, Case No. 11-15594-BFK, Ch. 7, 2012 Bankr. LEXIS 1673 (E.D. Va. April 17, 2012)
(holding that a client waived her attorney-client privilege protection by disclosing a communication from her lawyer, but concluding that the waiver did not cause a subject matter waiver; "On the same day, July 29, 2011, in response to an e-mail from Ms. West, Ms. Holme advised Ms. West that 'I'm doing everything I can -- see e-mail from our Attorney,' and she forwarded to Ms. West an e-mail from C. Thomas Ebel (hereinafter, 'Ebel e-mail'), of the law firm of Sands Anderson, dated July 28, 2011."; "Here, the Court cannot say that the Ebel e-mail was put to any tactical use by Ms. West. Ms. West was simply trying to move the negotiations along, and she forwarded her attorney's e-mail to Ms. Holme in an effort to do so. This is not a tactical use of the Ebel e-mail, such that it would make it unfair not to compel the disclosure of the rest of the attorney-client privileged materials in Sands Anderson's file."; "The Court finds that, although there has been a waiver as to the Ebel e-mail, there has not been a subject matter waiver in this case.")

Case Date Jurisdiction State Cite Checked
2012-04-17 Federal VA

Chapter: 30.602

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 (E.D. Va. 2010)
("However, it is settled that, 'when a party reveals part of a privileged communication to gain an advantage in litigation, the party waives the attorney-client privilege as to all other communications relating to the same subject matter. Selective disclosure for tactical purposes waives the privilege.' United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 30.602

Case Name: Gordon v. Newspaper Ass'n of Am., 51 Va. Cir. 183, 193-94 (Va. Cir. Ct. 2000)
(assessing possible subject matter waiver impact of a letter Media General sent to a third party, regretting an underlying incident and apologizing; "The letter at issue in this case was written on February 26, 1999, a little more than a month before the Motion for Judgment was filed. The letter, as quoted by both parties in memoranda and as discussed in this court's order of January 5, 2000, does not appear to have been made in anticipation of any litigation, much less to gain an advantage in this action. Furthermore, the court has seen no evidence to show that Media General intends to use the letter to gain such an advantage. The attorney-client privilege is meant to be used as a shield from intrusion and not as a sword for manipulation of the truth. The court sees no attempt to manipulate the truth by the combined disclosure of this letter and the continued shield against disclosure of the related communications whose production the court compelled in its order of January 5, 2000. Therefore, the court's earlier order is vacated.")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA B 3/16
Comment:

key case


Chapter: 30.603

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
(finding that there had been no subject matter waiver through the disclosure of protected documents, because its owner didn't have any intent to use them; "Union Pacific has shown that Exhibits G, H, and I were introduced as evidence in the Rent Action over its objection, were used against it in that case, and will not be used by Union Pacific in this case. . . . Kinder Morgan also states that it does not intend to use Exhibits G-I in this case. . . . Given these facts, the Court cannot conclude that Defendants are 'intentionally put[ting] protected information into [this] litigation in a selective, misleading and unfair manner' as required by the Advisory Committee Note. Thus, even if the Court were to find that the documents were disclosed voluntarily in this litigation -- a conclusion that is not obvious given that they were admitted in the Rent Action over Union Pacific's objection and, according to Plaintiffs, are now available in the public record -- Plaintiffs cannot satisfy the Rule 502(a)(3) requirement that disclosure of Exhibits A-F 'ought in fairness' to be required. As another judge of this Court has noted, a party's avowal that it does not intend to use a privileged communication in litigation eliminates the need for subject matter waiver under Rule 502 because 'the party asserting the privilege is not selectively and misleadingly presenting the disclosed materials as evidence.'")

Case Date Jurisdiction State Cite Checked
2016-12-21 Federal AZ

Chapter: 30.603

Case Name: United States v. Mount Sinai Hospital, 13-CV-04735 (RMB) (BCM), 2016 U.S. Dist. LEXIS 59727 (S.D.N.Y. May 4, 2016)
(finding that a hospital waived its attorney-client privilege and work product protection by disclosing documents during an audit of its billing records, but rejecting plaintiff's argument that the waiver extended to documents about an investigation into possible sexual harassment; ordering an in camera review of withheld documents; "The Court does not accept relators' broad conception of the linkage between the two investigations. Under Rule 502, undisclosed communications do not become discoverable unless (a) they 'concern' the same subject matter as the waived communications and (b) ought, 'in fairness,' to be produced. More than a mere 'touch' is required. There must be some reason to believe that the undisclosed communications underlay or influenced the Audit, or at least were among the materials that were considered in conducting the Audit and preparing the resulting report."; "Emails sent prior to or during the Audit, however, may be discoverable, at least to the extent that they concern Ortiz [sexual harassment plaintiff] herself and were sent to attorney Strauss [Defendant's in-house lawyer], or to others in the Audit & Compliance Services Department who worked on the Audit. If these criteria are met -- which cannot be determined from the privilege log alone -- and if, as relators contend, early iterations of the billing services investigation report incorporate information from the supposedly separate sexual harassment investigation, it may well be that the disputed emails, or some subset of them, must 'in fairness' be produced, because they were 'considered, prepared, reviewed, or relied on' by Strauss or others in the conduct of the Audit."; "[T]he fact that Strauss may have 'considered' or 'reviewed' the subject-matter of the Audit (or the Audit itself) in preparing litigation-related notes two and a half years later does not strip those notes of the protections of the attorney-client privilege or the work product doctrine if otherwise applicable."; "Indeed, the rule that relators seemingly endorse, taken to its logical conclusion, would eviscerate both the privilege and the doctrine forever -- even for litigation counsel -- once privilege has been waived with respect to a pre-litigation investigation or report concerning the subject of the lawsuit.")

Case Date Jurisdiction State Cite Checked
2016-05-04 Federal NY

Chapter: 30.603

Case Name: Mitre Sports International, Ltd. v. Home Box Office, Inc., No. 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812, at *3 (S.D.N.Y. Jan. 13, 2015)
April 1, 2015 (PRIVILEGE POINT)

"The Subject Matter Waiver Risk Continues to Recede"

In some situations, disclosure or reliance on privileged communications or protected work product triggers a "subject matter waiver" — requiring the owner's disclosure of additional related communications or work product. Historically, some jurisdictions found a subject matter waiver in many counterintuitive contexts — for instance, based even on litigants' inadvertent production of a protected document.

Many jurisdictions eventually adopted a common law doctrine finding subject matter waivers only upon intentional disclosure in a judicial setting. Recently, Federal Rule of Evidence 502 has limited subject matter waivers to litigants' disclosure or use of protected communications to paint a misleading picture in litigation. Courts are taking these developments to heart. In Mitre Sports International, Ltd. v. Home Box Office, Inc., No. 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812, at *3 (S.D.N.Y. Jan. 13, 2015), defendant HBO argued that Mitre triggered a subject matter waiver covering its investigation of possible child labor violations by (1) allowing its Rule 30(b)(6) witness to testify about the investigation, and (2) "attaching the products of its investigation to its complaint" against HBO. The court rejected HBO's argument, holding that (1) the witness's deposition answers and Rule 30(b)(6) designation did not amount to "an attempt by Mitre to use protected information to influence a decision maker" (noting that Mitre had not cited any of the testimony in its summary judgment motion) (id. at *7); and (2) Mitre's "attaching the products of its investigation to its complaint seems to have been done more for public relations reasons than legal reasons" — because "[t]he complaint is not evidence, and Mitre cannot offer it as such." Id. at *13-14.

Corporations should be relieved by the declining threat of subject matter waivers, although they should still avoid the disclosure of, affirmative use of, or reliance on privileged communications or protected work product to gain some advantage in litigation.

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 30.604

Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)
(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; "I find that when the Board released the Bullard Report, it waived the attorney-client privilege as to the entire scope of the investigation performed by Attorney Bullard, and all materials, communications, and information provided to Attorney Bullard as part of her investigation.")

Case Date Jurisdiction State Cite Checked
2018-01-12 Federal TN

Chapter: 30.604

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 66 N.Y.S. 3d 135, 2018 N.Y. App. Div. LEXIS 85 (N.Y. App. 1d Jan. 4, 2018)
(holding that a businessman waived privilege protection by sending an email to an investor that attributed his lawyer the actions that he intended to take in the future; inexplicably finding a subject matter waiver, although the disclosure occurred in a non-judicial setting; "Siras proffers an email dated March 24, 2016 from Dai to a third-party investor, Lou Ceruzzi, concerning the UBS loan: 'I was about to write, to you this email last Friday but I decided to 'wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'"; "I find that Dai waived the attorney-client privilege as to any communications and documents dealing with his counsel's advice that 'we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'. . . Contrary to the cases defendants' 'rely upon, Dai's communication to Ceruzzi goes beyond a client conveying to a third-party the decision to settle an action or withdraw a claim based on advice of counsel. . . . Dai's communication provided a detailed description of specific legal advice and the course of action given to him by his attorneys, which he voluntarily divulged to a third party. Accordingly, defendants are directed to produce any communications and documents 'pertaining to the subject matter of the email.'").; AFFIRMED: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017) (affirming the lower court's subject matter waiver holding; "By disclosing to a third party by email certain advice given to them by counsel, defendants waived the attorney-client privilege as to other documents pertaining to that advice (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616, 624, 36 N.Y.S. 3d 838, 57 N.E. 3d 30 [2016]; Arkin Kaplan Rice LLP v. Kaplan, 118 AD-3d 492, 988 N.Y.S.2d 22 [1st Dept 2014]).")

Case Date Jurisdiction State Cite Checked
2018-01-04 State NY
Comment:

key case


Chapter: 30.604

Case Name: SCF Waxler Marine LLC v. M/V Aris T, C. A. No. 16-902C/W16-959,16-1022,16-1060,16-1134,16-1614 Sec. "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
(holding that a draft incident report deserved privilege protection, although the final version was intended to be disclosed; "[J]ust because a factual statement is ultimately disclosed to the public, this does not mean that all drafts of the factual statement automatically lose any privilege that is attached to them. Natta v. Hogan, 392 F.2d 686, 692 (10th Cir. 1968) ('The situation is like that where a client gives general information to his lawyer so that the lawyer may prepare a complaint in any ordinary civil action. The fact that some of the information is thus publicly disclosed does not waive the privilege.'); Buford v. Holladay, 133 F.R.D. 487, 492 (S.D. Miss. 1990) (holding that the ultimate publication of Attorney General Opinions did not waive the privilege as to the communications leading up to the creation of the Opinions). Often, drafts of a document exchanged between an attorney and client will reflect the client's request for advice regarding how to present the facts and the attorney's advice in response. Ideal Electric Company v. Flowserve Corporation, 230 F.R.D. 603, 605 (D. Nev. 2005) ('Drafts often contain attorney's and client's mental impressions, strategies, and either solicit or provide legal advice.'). Such drafts are protected by the attorney client privilege. Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., No. CIV.A. 09-6644, 2014 U.S. Dist. LEXIS 93881, 2014 WL 3385130, at *4 (E.D. La. July 10, 2014) (holding that redacted draft affidavits were protected by the attorney client privilege); United States v. N.Y. Metro. Transp. Auth., No. 03CV02139-SLT-MDG, 2006 U.S. Dist. LEXIS 93920, 2006 WL 3833120, at *2 (E.D.N.Y. Dec. 29, 2006) (holding that draft uniform policy bulletins 'need not be produced since they are draft documents that were submitted to attorneys for the purpose of obtaining legal advice'); Ideal Electric Company, 230 F.R.D. at 605 (holding that draft affidavits were protected from disclosure by the attorney-client privilege); Long v. Anderson Univ., 204 F.R.D. 129, 135 (S.D. Ind. 2001) (holding draft answer to a complaint was privileged); Apex Mun. Fund v. N-Grp. Sec., 841 F. Supp. 1423, 1428 (S.D. Tex. 1993) ('[P]reliminary drafts of documents and communications made between attorney and client during the drafting process are privileged.'); Allegheny Ludlum Corp. v. Nippon Steel Corp., No. CIV. A. 89-5940, 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144, at *5 (E.D. Pa. Apr. 15, 1991) (holding that a draft patent application was privileged because the draft was not intended to be publicly transmitted and contained a communication within the attorney-client relationship for the purposes of rendering a confidential opinion)."; "Genesis now knows that contrary to what he suggested in his deposition, Leone [Ship Pilot] did not appear at his counsel's office with a contemporaneous written statement of events. Rather, it has been firmly established through in camera review and oral argument, that the first narrative of the accident was prepared by the attorney based on an interview of the client, Leone. Leone then handwrote in some changes to that draft prior to it becoming a final document, which was produced to NOBRA and others. Nonetheless, Genesis continues to insist that the drafts be discoverable so it can see any changes made. As reiterated in Ideal Electric Company and as discussed further below, however, it is 'these differences [that] are protected by the attorney client privilege and the work product privilege.'"; "[T]he Court finds that the ultimate disclosure of the final draft of the NOBRA Pilot Incident Report does not result in a waiver of the privilege. Just as in Ideal Electric Company, the Court finds that the drafts and notes were never intended to be made public. They were conveyed in confidence in the course of obtaining and giving legal advice. While Leone and his counsel were obviously working towards a document that would be made public, they did not intend that their drafts and analysis would be subject to disclosure. As the Court in Buford observed, the argument raised by Genesis here would result in disclosure of every draft of a pleading, brief, or affidavit that is exchanged between counsel and client merely because such drafts concern facts and the final draft is made public. At oral argument, counsel for Genesis seemed willing to live with this extraordinary result, but the Court finds that such a holding goes too far.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal LA
Comment:

key case


Chapter: 30.604

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
("The Court begins by noting that attorney-client privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts.'. . . Thus, Banneker could, through a well-written interrogatory, request the disclosure of all facts unearthed during the 51 witness interviews and WMATA would have no legitimate basis to refuse to respond. Banneker need not draft such an interrogatory, however, because the Court finds WMATA has waived the attorney-client privilege with respect to the interview memoranda."; "As originally commissioned, the Bondi Report was intended to be an internal document for WMATA's purposes and not slated for public disclosure. Upon receipt of the Bondi Report, the WMATA Board decided to release it to the public in its entirety. By disclosing the Bondi Report, WMATA chose to disclose the legal and factual conclusions that were contained in the report and, therefore, waived any claim of attorney-client privilege that existed with respect to the Bondi Report itself. The Court must now consider whether the public disclosure of the Bondi Report also resulted in subject-matter waiver of the attorney-client privilege covering the interview memoranda used to compile the report."; "The Court finds that the waiver of privilege as to the Bondi Report was intentional. . . . the Bondi Report cites extensively to the interview memoranda throughout the entirety of the document. The Court notes multiple references to at least 23 different witness interviews. Additionally, WMATA has not argued that the interview memoranda contain information outside the scope of the investigation or Bondi Report."; "'Ms. Rockwood notes in her declaration that the references to the interview memoranda in the Bondi Report were intended only for use by Cadwalader. . . . However, WMATA failed to remove the references and citations from the version of the Bondi Report that was made available to the public.'"; "WMATA has not zealously protected the information contained in the interview memoranda. Instead, WMATA has permitted direct citation and reference to confidential communications to be disclosed publically in the Bondi Report. WMATA has also used the Bondi Report to its advantage in this litigation. Fairness dictates that if WMATA is able to use the Bondi Report and facts disclosed in that report to support its claims and defenses, then Banneker is entitled to the remaining facts and information contained in the interview memoranda that were not included in the Bondi Report. The intent of subject matter waiver is to prevent a party from selectively disclosing information and documents that would otherwise be privileged to gain a tactical advantage. WMATA cannot both benefit from the disclosure of the Bondi Report and prevent further disclosure of the remaining information in the interview memoranda.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 30.604

Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal AR
Comment:

key case


Chapter: 30.604

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)
("The production of the draft Marketing Agreement by defendant, and the subsequent failure to assert the attorney-client privilege with respect to the document at the deposition of Mr. Kopelman in accordance with Fed. R. Civ. P. 26(b)(5)(B), therefore, constitutes a waiver of the attorney-client privilege by defendant with respect to the draft Marketing Agreement. Thus, plaintiffs may depose Mr. Roux and Mr. Glantz [Defendant's in-house lawyer] regarding the comments made in the draft Marketing Agreement. However, the waiver of the attorney-client privilege is limited only to the comments within that document."; "Plaintiffs further argue that defendant's failure to assert the attorney-client privilege with respect to the draft Marketing Agreement constitutes a broad subject matter waiver of any attorney-client communications regarding the Marketing Agreement. This court disagrees for two reasons. First, while the federal courts have recognized a broad subject matter waiver doctrine, 'Pennsylvania court have not adopted subject matter waiver.'. . . Second, when the federal courts have found a subject matter waiver, they have found that the party disclosing the document containing attorney-client materials has intentionally put the protected information into the litigation in a selective, misleading and unfair manner."; "In the instant case, plaintiffs have not established that defendant disclosed the draft Marketing Agreement to gain a tactical advantage. This case is not the 'unusual situation[] in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage plaintiff the adversary.'. . . Therefore, the court finds that defendant did not waive the attorney-client privilege as to the entire subject matter relating to the Marketing Agreement.")

Case Date Jurisdiction State Cite Checked
2016-09-28 Federal PA
Comment:

key case


Chapter: 30.604

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)
("The production of the draft Marketing Agreement by defendant, and the subsequent failure to assert the attorney-client privilege with respect to the document at the deposition of Mr. Kopelman in accordance with Fed. R. Civ. P. 26(b)(5)(B), therefore, constitutes a waiver of the attorney-client privilege by defendant with respect to the draft Marketing Agreement. Thus, plaintiffs may depose Mr. Roux and Mr. Glantz [Defendant's in-house lawyer] regarding the comments made in the draft Marketing Agreement. However, the waiver of the attorney-client privilege is limited only to the comments within that document."; "Plaintiffs further argue that defendant's failure to assert the attorney-client privilege with respect to the draft Marketing Agreement constitutes a broad subject matter waiver of any attorney-client communications regarding the Marketing Agreement. This court disagrees for two reasons. First, while the federal courts have recognized a broad subject matter waiver doctrine, 'Pennsylvania court have not adopted subject matter waiver.'. . . Second, when the federal courts have found a subject matter waiver, they have found that the party disclosing the document containing attorney-client materials has intentionally put the protected information into the litigation in a selective, misleading and unfair manner."; "In the instant case, plaintiffs have not established that defendant disclosed the draft Marketing Agreement to gain a tactical advantage. This case is not the 'unusual situation[] in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage plaintiff the adversary.'. . . Therefore, the court finds that defendant did not waive the attorney-client privilege as to the entire subject matter relating to the Marketing Agreement.")

Case Date Jurisdiction State Cite Checked
2016-09-28 Federal PA
Comment:

key case


Chapter: 30.604

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)
("The production of the draft Marketing Agreement by defendant, and the subsequent failure to assert the attorney-client privilege with respect to the document at the deposition of Mr. Kopelman in accordance with Fed. R. Civ. P. 26(b)(5)(B), therefore, constitutes a waiver of the attorney-client privilege by defendant with respect to the draft Marketing Agreement. Thus, plaintiffs may depose Mr. Roux and Mr. Glantz [Defendant's in-house lawyer] regarding the comments made in the draft Marketing Agreement. However, the waiver of the attorney-client privilege is limited only to the comments within that document."; "Plaintiffs further argue that defendant's failure to assert the attorney-client privilege with respect to the draft Marketing Agreement constitutes a broad subject matter waiver of any attorney-client communications regarding the Marketing Agreement. This court disagrees for two reasons. First, while the federal courts have recognized a broad subject matter waiver doctrine, 'Pennsylvania court have not adopted subject matter waiver.'. . . Second, when the federal courts have found a subject matter waiver, they have found that the party disclosing the document containing attorney-client materials has intentionally put the protected information into the litigation in a selective, misleading and unfair manner."; "In the instant case, plaintiffs have not established that defendant disclosed the draft Marketing Agreement to gain a tactical advantage. This case is not the 'unusual situation[] in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage plaintiff the adversary.'. . . Therefore, the court finds that defendant did not waive the attorney-client privilege as to the entire subject matter relating to the Marketing Agreement.")

Case Date Jurisdiction State Cite Checked
2016-09-28 Federal PA
Comment:

key case


Chapter: 30.604

Case Name: Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016)
November 2, 2016 (PRIVILEGE POINT)

"Does Releasing an Internal Investigation Report Always Trigger a Subject Matter Privilege Waiver?"

One might think that a corporation or government entity would always trigger a subject matter privilege waiver by disclosing an internal investigation report. But subject matter waiver risks have been receding.

In Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016), defendant school district released its investigation report into racist text messaging among administrators. Not surprisingly, plaintiffs claimed a waiver, and sought all related documents and privileged communications. The court rejected plaintiffs' efforts, noting that "[t]he 'central element' in determining whether a partial waiver exists is the question of fairness." Id. at *6 (citation omitted). The court noted that plaintiffs "have not argued that [defendant] has made any strategic use of the Report in this litigation, that it relies on the Attorneys' investigation as a form of defense in this action or that it has 'made factual assertions, the truth of which can only be assessed by examination of the privileged communications.'" Id. at *7 (citation omitted). The court also concluded that plaintiffs could obtain "non-privileged materials the Attorneys collected in their investigation . . . through ordinary discovery addressed to the materials' original sources." Id. at *7-8.

Some courts might find that such a release constitutes an effort to gain some advantage in the "court of public opinion," but cases like this continue the trend toward courts' rejection of broad subject matter waivers.

Case Date Jurisdiction State Cite Checked
2016-09-12 Federal PA B 11/16
Comment:

key case


Chapter: 30.604

Case Name: Hawa v. Coatesville Area School Dist., Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016)
(holding that defendant's release of an investigation report about possible management misconduct did not result in a subject matter waiver; explaining that defendant school district investigated allegedly racist text messages, and ultimately publicized the report; "In an effort to be transparent regarding various allegations of misconduct by CASD, CASD released the Report to the public."; "CASD moves to quash the subpoenas, asserting, inter alia, that they seek privileged information. . . . Plaintiffs argue that CASD has waived any claim of privilege over the responsive documents by publishing the Report. . . . In response, CASD contends that its publication of the Report did not act as a waiver with respect to any attorney-client privileged information related to the Report that was not disclosed."; "There is no question that the work of 'an attorney who investigates complaints and conducts interviews within a company or an organization retains the same entitlement to the attorney-client privilege as if he or she were offering pure legal advice.'. . . Here, Plaintiffs argue that by releasing the Report CASD's attorneys had produced as the result of their investigation, CASD has waived its attorney-client privilege as to all documents that were consulted in the preparation of the Report as well as all related communications."; "It is true, as CASD contends, that a party generally waives the privilege if it voluntarily discloses a privileged communication to a third party. . . . However, it also is well-recognized that a party may make a partial waiver of the attorney-client privilege with respect to attorney-client communications actually disclosed without waiving its attorney-client privilege in its entirety unless a partial waiver would be unfair to a party's adversary. . . . The 'central element' in determining whether a partial waiver exists is the question of fairness."; "The doctrine of partial waiver is applicable in cases where attorneys conduct investigations on behalf of a client and the client then releases the attorney's report without releasing underlying documents and communications."; "In the present case, the Attorneys prepared the Report as part of a wide-ranging investigation of an array of improper and potentially unlawful activities allegedly carried out by CASD's former leadership that had become the subject of a publicly-reported investigative grand jury report. . . . as a public entity, released the Report to provide transparency to its constituents as to a matter of significant public interest. Plaintiffs have not argued that CASD has made any strategic use of the Report in this litigation, that it relies on the Attorneys' investigation as a form of defense in this action or that it has "'made factual assertions, the truth of which can only be assessed by examination of the privileged communications.'". . . They have not articulated any basis on which nondisclosure of the communications and materials underlying the Report would impose any unfairness on them. Nor have they argued, or provided any basis for the Court to conclude that any of the non-privileged materials the Attorneys collected in their investigation are not available to them through ordinary discovery addressed to the materials' original sources. Plaintiffs have merely alleged a blanket waiver of the attorney-client privilege for all materials consulted or obtained in the preparation of the Report and all communications relating to it. . . . As the authority discussed above demonstrates, Plaintiffs' blanket-waiver argument is unavailing.")

Case Date Jurisdiction State Cite Checked
2016-09-12 Federal PA
Comment:

key case


Chapter: 30.604

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(analyzing the waiver impact of a general partner disclosing privileged documents to a friend; finding a waiver, but not a subject matter waiver; "In light of the fact that the scope of the waiver is construed narrowly, the Court finds that Igra only waived the attorney-client privilege with respect to the content of these specific emails, and not all communications concerning the subject matter of the lawsuit. To the extent that the content of these emails is included in any of the withheld documents, TRT shall produce the portions of those documents that include the waived content. However, that is the full extent of the waiver. The Court will not construe these limited emails that briefly discuss some facts of the claims against Lucky into a broad waiver of all attorney-client privileged communications concerning the subject of the lawsuit against Luckey.")

Case Date Jurisdiction