Showing 127 of 127 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2012-12-12 Federal MA B 9/13

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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1988-01-01 State VA B 3/16
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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-01-16 Federal PA B 7/13

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2012-12-02 Federal VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2015-08-10 Federal MA
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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2015-01-13 Federal 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 Jurisidction State Cite Checked
2017-06-13 Federal LA
Comment:

key case


Chapter: 30.604

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(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.'")

Case Date Jurisidction State Cite Checked
2017-06-05 State NY
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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2016-05-17 Federal CA

Chapter: 30.604

Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "United States did no more than make a good faith attempt to narrowly confine its claim of attorney-client privilege to what it believed was clearly privileged and avoid getting the parties (along with this court) embroiled over difficult and time-consuming arguments about where exactly to draw the line as to what should be produced and what must be withheld. Further, it does not appear the United States has attempted to gain a litigation advantage over plaintiffs by its redaction efforts, despite plaintiffs' claims to the contrary. Consequently, 'fairness' would not require further disclosure if this was plaintiffs' only argument for waiver and further disclosure."; "There is some authority that the mere reference to an ultimate conclusion of an attorney is not a waiver so long as the actual content of the attorney's confidential communication is not disclosed."; "But, even if there was a waiver, fairness would not require disclosure of the 1962 and the 1980 opinions and other related documents simply on account of this memorandum, at some point prior to the commencement of this case, having found its way into the public domain. . . . . Further, when this document found its way into the public domain, there is no indication it was for the purpose of gaining a tactical advantage for purposes of later litigation, and it does not appear the United States has relied upon it so far.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND

Chapter: 30.604

Case Name: Morgan v. City of Rockville, Civ. No. GJH 13-1394, 2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28, 2014)
(inexplicably finding that a company did not waive its privilege by issuing a press release saying that a law firm had conducted an internal investigation and had "identified no unlawful conduct"; "Here, no actual communications between Rockville employees and Saul Ewing were disclosed to the public. The news release merely outlines the legal services provided to the Rockville city council in response to prior employee complaints. Informing the public that counsel recommended improvements to communication between management and staff does not constitute a disclosure of a confidential communication.")

Case Date Jurisidction State Cite Checked
2014-10-28 Federal MD

Chapter: 30.604

Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "The Court does not find that the disclosures were made for a strategic, offensive purpose, and does not foresee them creating an unfair advantage in this litigation. The scope of waiver relating to Plaintiff's counsel is, therefore, limited to communications actually disclosed between Plaintiff and Bellao [third party].")

Case Date Jurisidction State Cite Checked
2014-10-21 Federal FL

Chapter: 30.604

Case Name: Busey v. Richland School Dist., No. 13-CV-5022-TOR, 2014 U.S. Dist. LEXIS 50579 (E.D. Wash. April 10, 2014)
(finding a client's statement to the newspaper that he relied on a lawyer's advice did not trigger an at issue or an implied waiver; "Plaintiff does provide an exhibit of an article from the local newspaper stating that Richland School Board Chairman Rick Jansons said that 'We followed all the directions of our attorney and were within the law.'. . . Insofar as Plaintiff relies on this statement to show that Defendants put privileged information at issue, the Court disagrees. A statement by a board member, before litigation begins, does not rise to the level of 'at issue' represented by case law, in which parties put privileged information at issue by raising a defense relying on the information.")

Case Date Jurisidction State Cite Checked
2014-04-10 Federal WA

Chapter: 30.604

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)
(addressing a general counsel's testimony as a Rule 30(b)(6) witness that he relied on an outside lawyer, but noting the defendant's disclaimer of any reliance on advice of counsel defense in finding that there had not been waiver; finding that a litigant's assertion of good faith did not trigger a waiver; "Defendant Keltz [General Counsel] made a partial disclosure of a confidential conversation when he stated that Littman [Outside Lawyer] advised Defendant Major that it was not necessary to update a valuation, but this does not amount to a selective disclosure that requires an implied-waiver finding because, in order 'to effectuate [such] a waiver, the selective disclosure must have occurred in an adversarial context, i.e., one that has the potential to cause legal prejudice to the proponent's adversary.'. . . Here, Defendant Keltz's partial disclosure was made at deposition and not in front of a factfinder.")

Case Date Jurisidction State Cite Checked
2014-03-31 Federal NY

Chapter: 30.604

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)
(addressing a general counsel's testimony as a Rule 30(b)(6) witness that he relied on an outside lawyer, but noting the defendant's disclaimer of any reliance on advice of counsel defense in finding that there had not been waiver; finding that a litigant's assertion of good faith did not trigger a waiver; "The Court finds John Doe Co. [John Doe Co. v. U.S., 350 F.3d 299, 306 (2d Cir. 2003)] applicable here and finds that Defendant Keltz's statement to Plaintiffs in an extrajudicial context did not waive privilege under a selective disclosure theory.")

Case Date Jurisidction State Cite Checked
2014-03-31 Federal NY

Chapter: 30.604

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *27-28 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "This Court agrees with the Federal Circuit [WI-LAN, Inc. v. Kilpatrick Townsend & Stockton LLP, 684 F.3d 1364, 1369 (Fed. Cir. 2012)] that fairness must be the touchstone in determining whether Wal-Mart's disclosure of certain findings in the Memo compels the disclosure of the entire Memo. . . . The Court finds no unfairness to Plaintiffs here. Wal-Mart has not attempted to use any portions of the Memo in this litigation. As long as the initial disclosures of privileged communications 'are and remain extrajudicial, there is no legal prejudice that warrants a broad court-imposed subject matter waiver.'. . . '[D]isclosures made in public rather than in court -- even if selective -- create no risk of legal prejudice until put at issue in the litigation by the privilege holder.'" (citation omitted))

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

Chapter: 30.604

Case Name: O'Kinsky v. Perrone, Civ. A. No. 10 6075, 2012 U.S. Dist. LEXIS 146194, AT *5 (E.D. Pa. Oct. 10, 2012)
(finding that the von Bulow doctrine did not apply; declining to find a subject matter waiver caused by the plaintiff's disclosure to defendants of a privileged communication from another lawyer; noting that the disclosure occurred before litigation began; "This is not the situation where in the course of a judicial proceeding, the plaintiff deliberately injected in the case the advice he received from his attorney. . . . [B]ecause this is a case of an extrajudicial disclosure of an attorney client communication that plaintiff is not affirmatively using in this litigation to his adversaries' prejudice, plaintiff does not waive the privilege as to all of the other undisclosed communications between himself and Mr. Kaplan.")

Case Date Jurisidction State Cite Checked
2012-10-10 Federal PA B 12/13

Chapter: 30.604

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 Jurisidction State Cite Checked
2012-04-17 Federal VA

Chapter: 30.604

Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 358, 365 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "[B]oth parties would concede that the vast majority of cases to apply the subject matter waiver doctrine have done so in the context of judicial disclosures."; "We hold that subject matter waiver does not apply to the extrajudicial disclosure of attorney-client communications not thereafter used by the client to gain an adversarial advantage in litigation."; "While privileged extrajudicial disclosures are not subject to subject matter waiver, if those same privileged communications are later reused in a judicial setting, the circumstances of the initial disclosure will not immunize the client against a claim of waiver.")

Case Date Jurisidction State Cite Checked
2012-01-01 State IL B 8/13

Chapter: 30.604

Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 356 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "The attorney-client privilege belongs to the client, rather than the attorney, although the attorney asserts the privilege on behalf of the client. . . . Only the client may waive the privilege. . . . The attorney, although presumed to have authority to waive the privilege on the client's behalf, may not do so over the client's objection.")

Case Date Jurisidction State Cite Checked
2012-01-01 State IL B 8/13

Chapter: 30.604

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470-71 (Va. Cir. Ct. 2001)
("The attorney-client privilege may be waived by the client either expressly or implied from the client's conduct. Commonwealth v. Edwards, supra, at 509; Grant, supra. at 648-49. In the instant case, the defendant told the police officer transporting her to the Albemarle Regional Jail on September 13, 2001, that Bruce K. Tyler, her former lawyer, told her that she need not legally change her name to get a home equity loan or insurance benefits. I find that this constitutes an implied waiver of the attorney-client privilege. It is a communication to the police officer of information that would otherwise be privileged because it was a communication from her lawyer to her in the course of his employment. This waiver not only waives the privilege as to any transmitted data, but also as to the details underlying that information. Commonwealth v. Edwards, supra, at 509-10.")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 30.604

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 74 (E.D. Va. 1998)
("Therefore, the 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." (footnote omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 30.605

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(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.'")

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

key case


Chapter: 30.605

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 Jurisidction State Cite Checked
2017-05-05 Federal AR
Comment:

key case


Chapter: 30.605

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Waiver can occur by public revelation. See, e.g. Tri-County Paving, Inc. v. Ashe County, 2000 U.S. Dist. LEXIS 19563, 2000 WL 1811606, 2000 U.S. Dist. LEXIS 19563, at *4 (W.D.N.C. Oct. 5, 2000). Revelation is 'public' if 'it destroys any expectation of privacy for the disclosed information.' See E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 (E.D. Va. 2010) (citations omitted). And, 'when a party discloses information that had been confidential before the disclosure, the privilege is waived not only to that communication, but also "as to the subject matter of the disclosure."' Id. (quoting Hawkins v. Stables, 148 F.3d 379, 384 n. 4 (4th Cir. 1998)). The rule prevents 'selective disclosure for tactical purposes.' Id. (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)).")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 30.605

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470-71 (Va. Cir. Ct. 2001)
("The attorney-client privilege may be waived by the client either expressly or implied from the client's conduct. Commonwealth v. Edwards, supra, at 509; Grant, supra. at 648-49. In the instant case, the defendant told the police officer transporting her to the Albemarle Regional Jail on September 13, 2001, that Bruce K. Tyler, her former lawyer, told her that she need not legally change her name to get a home equity loan or insurance benefits. I find that this constitutes an implied waiver of the attorney-client privilege. It is a communication to the police officer of information that would otherwise be privileged because it was a communication from her lawyer to her in the course of his employment. This waiver not only waives the privilege as to any transmitted data, but also as to the details underlying that information. Commonwealth v. Edwards, supra, at 509-10.")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 30.605

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1306 n.15 (E.D. Va. 1992)
("Moreover, voluntary disclosure by the client to a third party waives the privilege as to both the specific communication and all other communications relating to the same subject matter."; holding that an in-house lawyer did not have to return privileged communications that the lawyer took when the lawyer left employment), aff'd sub nom. Seal v. Under Seal, 17 F.3d 1435 (4th Cir. 1994)

Case Date Jurisidction State Cite Checked
1992-01-01 Federal VA

Chapter: 30.605

Case Name: In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988)
(holding that Martin Marietta's submission to a United States Attorney of "a Position Paper describing why the company should not face indictment" means that "the Position Paper as well as the underlying details are no longer within the attorney-client privilege."), cert. denied, 490 U.S. 1011 (1989)

Case Date Jurisidction State Cite Checked
1988-01-01 Federal

Chapter: 30.605

Case Name: United States v. Jones, 696 F.2d 1069, 1072-73 (4th Cir. 1982)
("The appellants not only obtained the tax law opinions for the ultimate use of persons other than themselves, but also publicized portions of the legal opinions in brochures and other printed material."; finding that a client had waived the attorney-client privilege by publicizing portions of a lawyer's legal opinions in brochures; the subject matter waiver extended to communications "underlying the published opinion letters" thereby waiving the privilege that might otherwise have applied to related documents and information)

Case Date Jurisidction State Cite Checked
1982-01-01 Federal

Chapter: 30.702

Case Name: FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 484 (E.D. Va. 1991)
(holding that inadvertent production of a privileged document did not create a subject matter waiver)

Case Date Jurisidction State Cite Checked
1991-01-01 Federal VA

Chapter: 30.703

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 Jurisidction State Cite Checked
2016-09-28 Federal PA
Comment:

key case


Chapter: 30.703

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 Jurisidction State Cite Checked
2016-09-28 Federal PA
Comment:

key case


Chapter: 30.703

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 Jurisidction State Cite Checked
2016-09-28 Federal PA
Comment:

key case


Chapter: 30.703

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 110 (Fed. Cl. 2013)
(explaining in dicta: "That subject matter waiver may apply to inadvertent disclosures occurring prior to litigation is consistent with the purpose of Rule 502(a) to address 'the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information,' which 'is especially troubling in cases involving electronic discovery.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 30.801

Case Name: United States v. Berkeley Heartlab, Inc., Civ. A. No. 9:14-cv-00230-RMB Consolidated with 9:11-cv-1593-RMG and 9:15-cv-2458-RMG, 2017 U.S. Dist. LEXIS 51691 (D.S.C. April 5, 2017)
(holding that defendant's advice of counsel defense resulted in a broad subject matter waiver, including even uncommunicated privileged documents; also finding that the subject matter waiver included work product protected documents; "In their Amended Answer, the BlueWave Defendants asserted several affirmative defenses, including good faith reliance on advice of counsel: 'Defendants BlueWave, Dent, and Johnson acted in good faith reliance on counsel, including, but not limited to, the legal opinions/advice of attorney Gregory B. Root dated December 27, 2007 and January 2, 2008, the legal opinion/advice of attorney Michael F. Ruggio dated April 27, 2012 (said opinion attached hereto and incorporated herein by reference as Exhibit A), and the advice of attorney Gene Sellers with respect to BlueWave's contracts with HDL, Singulex and its independent contractors.'"; "Courts in this Circuit have found that when a party asserts an advice of counsel defense that the privilege waiver applies to advice received during the entire period the misconduct is alleged to have been ongoing – even up to and during trial."; "Here, the Government has alleged that the conduct at issue took place from 2008 through July 2014 (with regard to the processing and handling scheme) and from 2008 through January 2015 for the sales contracts and waiver of copays and deductibles schemes. By pleading an affirmative advice of counsel defense to the Government's complaint, Defendants placed their communications with counsel at issue and so waived attorney-client privilege as to all information relating to their communications with counsel during the OIG investigation about the conduct at issue in this case."; "'Defendants assert in their Response that 'The advice of counsel defense contemplated . . . is for business and planning opinion advice received in 2010 through 2012 before setting off on the course of conduct which later precipitated the OIG investigation and the filing of the instant suit.'. . . Defendants cannot narrow the scope of their affirmative defense in their briefings on this motion to compel when the defense asserted in their amended answer was not so limited.'")

Case Date Jurisidction State Cite Checked
2017-04-05 Federal SC

Chapter: 30.801

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The attorney-client privilege, which attaches to the communications between the Petitioner and his former counsel, shall not be deemed automatically waived in any other federal or state proceeding.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal VA

Chapter: 30.801

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The court begins by noting, again, that the Petitioner has intentionally waived the attorney-client privilege with respect to his former counsel's conduct and their communications put into issue and disclosed by his § 2255 Motion and supporting documentation, and he does not dispute this waiver or the government's need for discovery into these privileged communications. . . . Accordingly, under VRPC 1.6(b)(2), the Petitioner's former counsel may reveal information reasonably necessary to respond to allegations concerning their representation of the Petitioner, in connection with this habeas proceeding, without violating the VRPC.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal VA

Chapter: 30.801

Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681 (E.D. Mich. March 7, 2017)
(holding that a defendant relying on advice of counsel must produce communications with all of the counsel from who he received pertinent advice, rather than just the three lawyers whose communications he initially wanted to disclose; "Trotter intends to assert a defense of good faith reliance on the advice of counsel and has agreed to waive the attorney-client privilege. Trotter's counsel submitted waivers for three attorneys: Carey Kalmowitz, Abby Pendleton, and Sarif Kasmikha. The Government asserts that Trotter received management advice from additional attorneys, including Louis Szura, David Haron, James Burdick, and Robert Morgan, and requests that Trotter waive privilege to these individuals as well."; "The scope of this waiver 'goes not only to the specific advice of counsel, but also to all other attorney client communications related to the same subject matter. This includes the client's questions to the lawyer and material provided to counsel to help render an opinion.'. . . Defense counsel asserts that they have produced all of the relevant documents in their possession. But, Fed. R. Crim. P. 16(b)(1)(A)(i) requires production of all relevant communications in the defendant's possession, custody, or control. Defense counsel is ordered to request these materials from his client. If Trotter has any such materials, counsel must produce them to the Government. Failure to make a full disclosure constitutes a waiver of the advice of counsel defense."; "For the reasons stated above, the Government's motion is GRANTED. Trotter is ordered to (1) identify all attorneys who advised him on his management practices, (2) waive the attorney-client privilege for these attorneys, and (3) produce all materials relating to legal advice on these management practices in his possession. Failure to do so will preclude Trotter from raising the good faith reliance of counsel defense at trial.")

Case Date Jurisidction State Cite Checked
2017-03-07 Federal MI
Comment:

key case


Chapter: 30.801

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2017 U.S. Dist. 7137 (N.D. Ga. Jan. 18, 2017)
(holding that plaintiff's malpractice case against its former lawyer impliedly waived opinion work product protection for documents created by replacement counsel; "Monitronics has alleged that the Veasley verdict was the result of Defendants' malpractice in their representation of Monitronics before they were discharged. In doing so, Monitronics must show, among other things, that the alleged malpractice was the proximate cause of the damage alleged. Monitronics has directly implicated the relevance of the Production Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "Defendants have asserted several affirmative defenses to Monitronics' malpractice claim, including lack of causation and comparative negligence, and they have filed a notice seeking to apportion fault to successor counsel. 'It would undermine the most basic concepts of fairness to allow [Monitronics] to claim [Defendants are] liable for the entirety of their damages, while precluding the discovery of contrary evidence.'. . . This is especially true considering that the Court's review of the Production Documents submitted for in camera review disclosed specific reasons for the fact and magnitude of the Veasley verdict based on reasons other than Defendants' alleged professional conduct."; "The Court has reviewed the opinion work product materials submitted by Monitronics and the Nonparties. The Court finds in the particular circumstances of this legal malpractice case -- where Plaintiff claims the Defendant lawyers are responsible for the entirety of an adverse jury verdict issued months after Defendants were replaced by successor counsel, where Defendants did not participate in the trial or the unsuccessful appeal, and where a number of the submitted opinion work product materials are central to the causation issue in this case -- that portions of the Productions Documents submitted for review are required to be produced.")

Case Date Jurisidction State Cite Checked
2017-01-18 Federal GA

Chapter: 30.801

Case Name: In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015)
December 23, 2015 (PRIVILEGE POINT)

"Corporations Can Risk Privilege Protection by Relying Too Heavily on Legal Advice when Firing Employees"

Corporations firing employees normally must explain why. All corporate lawyers recognize that affirmatively pleading "advice of counsel" as an employment case defense normally waives privilege protection, but the risks can be more subtle.

In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015), plaintiff claimed that the county unlawfully fired him. When asked why the county fired plaintiff, the county's decision-maker (and co-defendant) answered "'I did so on the advice of counsel.'" Id. At *2 (internal citation omitted). When asked if there was "'[a]nything else?,'" the witness responded, "'That's all at this point.'" Id. Later in the deposition, the county's lawyer objected to questions about whether the decision-maker's "beliefs were based on advice from counsel," and what "sources of information informed [the decision-maker's] belief that Plaintiff had exceeded his authority." Id. At *4. Acknowledging that the defendants had not filed a formal "advice of counsel" defense, the court nevertheless found a privilege waiver — pointing to (1) the decision-maker's testimony "that he initially had nothing to add to his statement that he terminated Plaintiff 'on the advice of counsel,'" and (2) his later testimony that the firing was based on his belief that the plaintiff acted improperly "and this belief was based on his conversations" with the county's lawyer. Id. At *11. The court held that the waiver extended to all "communication[s] relied on by [the decision-maker] which he testified formed the basis of his termination decision." Id.

Corporations (and other institutions) can impliedly waive their privilege protection without affirmatively pleading an "advice of counsel" defense. In employment cases, decision-makers should rely on underlying facts from sources other than just their lawyers, and should be prepared to testify about the reasons for employment decisions other than those lawyers' advice.

Case Date Jurisidction State Cite Checked
2015-10-30 Federal PA
Comment:

key case


Chapter: 30.801

Case Name: Scherer v. Steel Creek Property Owners Assoc., 1:13cv121, 2015 U.S. Dist. LEXIS 56196 (W.D.N.C. April 29, 2015)
(analyzing the scope of an implied waiver based on defendant's reliance on advice of counsel; allowing defendant to amend its answer and withdraw an advice of counsel defense on certain matters, but requiring production of otherwise privileged documents relating to the remaining advice of counsel defense; "As a threshold matter, the Court's prior Order granting Defendants leave to amend their Answers was not an invitation for Defendants to take back the assertion of the advice of counsel defense as to areas where Defendants had specifically asserted it and acknowledge to this Court that they had waived the attorney client privilege as to the subject matter of these areas. Rather, the Court was allowing Defendants the opportunity to avoid the unintended consequences of waiving the attorney client privilege as to the subject matter of all the claims in Plaintiffs' Amended Complaint because of the broad language Defendants included in their Answers. Consistent with the Court's prior Orders, the Court finds that Defendants have waived the attorney client privilege as to the following subject matters as a result of their prior, specific assertion of the advice of counsel defense in these proceedings: (1) The charging of retroactive assessments based on 16 platted lots instead of four; (2) The calculation of future assessments; (3) The interpretation of the Covenants; (4) The charging of 18% interest; (5) The rejection of the construction plans or drawings; and (6) The initial refusal to comply with the Plaintiffs' requests for inspection.")

Case Date Jurisidction State Cite Checked
2015-04-29 Federal NC

Chapter: 30.801

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; "The Court finds that Allstate has waived the attorney-client privilege for all communications between it and Attorney Waldrop regarding insurance coverage advice or opinions related to Plaintiff's claim for insurance proceeds."; "Although the Court finds that certain information in Attorney Waldrop's possession is not protected by the attorney-client privilege or work product doctrine, it does not necessarily follow that Plaintiff is entitled to Waldrop's 'entire file.' Plaintiff is entitled to information relating to Allstate's defense that it relied on the advice of counsel. The information that Allstate placed at issue in this case relates to Allstate's knowledge of and reliance upon Waldrop's opinions and advice. Accordingly, Plaintiff is entitled to all written communications (or notes describing such) between Allstate and Attorney Waldrop regarding Plaintiff's claim for benefits under the Allstate policy at issue in this case. This would include all documents provided by Allstate (or any other person) to Attorney Waldrop that were reviewed or considered in reaching his opinion. Waldrop need not produce copies of cases, research, or other notes he prepared (unless they reference correspondence with Allstate) while rendering or forming his opinion, as such documents have no real bearing on the issue of Allstate's reliance on the advice of counsel and are beyond the scope of discovery.")

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

Chapter: 30.801

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("As to the attorney-client privilege, an assertion of the advice-of-counsel defense waives that privilege as to communications and documents relating to the subject matter of the advice.")

Case Date Jurisidction State Cite Checked
2014-04-21 Federal MD

Chapter: 30.801

Case Name: Scarpinati de Oliveira v. Cairo-Durham Cent. Sch. Dist., Civ. No. 1:11-CV-393 (NAM/RFT), 2013 U.S. Dist. LEXIS 124329, at *4-5, *5, *6 (N.D.N.Y. Aug. 30, 2013)
(holding that a defendant's reliance on advice of counsel resulting in a limited subject matter waiver; "The School District Defendants acknowledge that they had relied upon the advice of counsel from Kristine Lanchantin, Esq., which they received during the spring of 2010 regarding the determination of teachers' seniority."; "When there is a reliance upon the advice of counsel, it is accurate to note that there is a subject matter waiver of attorney-client privileged communications that may reach all related privileged conversations regarding that particular subject."; "[T]he Court agrees with the School District Defendants that they have waived neither the attorney-client privilege nor the work product doctrine with respect to those communications that pertain to the New York State Article 78 proceeding, grievances and appeals before the Commissioner of Education of the State of New York and Public Employment Relations Board, and this federal action.")

Case Date Jurisidction State Cite Checked
2013-08-30 Federal NY B 4/14

Chapter: 30.801

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 338 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "JJK's right to know extends from the beginning of the process that led to any advice given by the Daniels Law Firm to Swiger that he had a valid right to prosecute said Mon County civil action against JJK. It is unknown when that process began. Only the Daniels Law Firm and Swiger know that date. That date must have been sometime in the continuum between when Swiger first consulted the Daniels Law Firm concerning the property dispute and when he filed the amended complaint joining JJK as a party defendant in the Mon County Civil Action. JJK's right to know ceases with the filing of the state court action against it. JJK is not entitled to the trial strategy developed by the Daniels Law Firm after the JJK was joined in the state court action. Nor is JJK entitled to attorney -client communications, fact work product and opinion work product solely dealing with Swiger's claims against the Wangs [who sole same property to plaintiff and to defendant] unless the same were also used in forming the opinion to bring JJK in to the state court action.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal WV B 3/14

Chapter: 30.801

Case Name: 7600 Ltd. P'ship v. QuesTech, Inc., 41 Va. Cir. 60, 61 (Va. Cir. Ct. 1996)
("[I]t is well settled that 'when a party asserts an advice of counsel defense, it waives the attorney-client privilege with respect to all communication to and from counsel concerning the transaction for which counsel's advice was sought'") (quoting Applied Telematics, Inc. v. Sprint Corp., No. 94CV4603, 1995 WL 567436, at *1 (E.D. Pa. Sept. 21, 1995)))

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 30.801

Case Name: Tomblyn v. Compton, 26 Va. Cir. 131, 132 (Va. Cir. Ct. 1991)
(plaintiff's malpractice action against a lawyer "put the privileged information held by [plaintiffs' replacement counsel] directly in issue [because] any such information is part of one continuous course of legal representation that the Plaintiffs pursued, first with the Defendant and then with [replacement counsel]")

Case Date Jurisidction State Cite Checked
1991-01-01 State VA

Chapter: 30.802

Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-Middlebrooks/Lynch, 2017 U.S. Dist. LEXIS 29016 (S.D. Fla. Feb. 28, 2017)
(finding that defendant waived its attorney-client privilege protection by relying on its good faith attempt to comply with the law; "Beall's Answer denies that the company erred in its AM classification . . . but the Third and Fifth Affirmative Defenses also stress that if it did, any such error was, respectively, not willful and made in a good faith attempt to comply with the law. . . . Whether Beall's classification of AMs as exempt employees was willful is a material 'question of law and fact,' . . . because the running of the statute of limitations and availability of liquidated damages both turn on the state of mind of Beall's officials."; "As to the Fifth Defense, Beall's repeated the same answer but added at the end of the sentence that Beall's 'consulted with legal counsel regarding such classification.'"; "There is one material point in dispute: whether Beall's impliedly waived the attorney-client privilege by putting its state of mind directly at issue."; "Plaintiffs contend that Beall's implicated the attorney-client relationship when it asserted the affirmative defense of good faith."; "Beall's waived its attorney-client privilege with respect to the documents in question by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification."; "Beall's warns that a ruling in favor of Plaintiffs raises the specter of plaintiffs receiving automatic access to the substance of an attorney's advice to her clients when a party asserts a good faith defense. But Beall's dire pronouncement need not come to fruition because it is within the power of the holder of the privilege to make or omit a waiving statement. As Cox [Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1417-20 (11th Cir. 1994)] noted, a defendant can always deny the element of a plaintiff's claim alleging a certain mental state "without affirmatively asserting" a good faith belief in an act's legality.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal FL

Chapter: 30.802

Case Name: Foster v. City of New York, 14 Civ. 4142 (PGG) (JCF), 14 Civ. 9220 (PGG) (JCF), 2016 U.S. Dist. LEXIS 14594 (S.D.N.Y. Feb. 5, 2016)
(in an opinion by Magistrate Judge Francis, finding that the defendant City triggered a waiver by seeking to avoid liquidated damages by claiming subjective good faith in attempting to comply with FLSA guidelines, and finding a broad scope of waiver that included communication with any level of City employees, but not extending to lawyer-to-lawyer communications that did not involve City employees; "[T]o avoid the award of liquidated damages, a defendant who has violated the overtime provisions of the FLSA must prove that it "acted in subjective 'good faith' and had objectively 'reasonable grounds' for believing that the acts or omissions giving rise to the failure did not violate the [statute].". . . To meet the subjective prong, "an employer must show that it took 'active steps to ascertain the dictates of the FLSA and then act to comply with them.'"; "The defendant asserts it implemented policies and procedures 'to ensure compliance with the FLSA after consultation with counsel for the City of New York.'"; "The City's good faith defense has effected an implied waiver here. . . . The question, as noted above, is the waiver's scope."; "The City has said it relied on the advice of counsel in formulating its FLSA compliance policies. It has therefore waived protection over communications related to legal advice about this compliance shared between attorneys and non-attorney employees, whether those employees are 'decision-makers' or 'lower level employees' who might provide input to the process. Indeed, to the extent that such advice was provided to employees completely disconnected from the decision-making chain, the City has waived attorney-client privilege over those communications, as well. . . . Therefore, the defendant shall produce communications between counsel working on behalf of the City (whether from the Law Department, either of the agencies' legal departments, or outside counsel) and any non-attorney employee of the agencies or the City, as long as it is relevant to advice provided to the agencies or the City regarding the agencies' FLSA compliance."; "The remaining category of information at issue is attorney-to-attorney communications. The plaintiffs contend that these are discoverable."; "The City argues that the good faith defense depends on its 'state of mind' which could not have been influenced by information it never heard. . . . To be sure, the reasonableness of the City's reliance on the advice of counsel could be undermined if, for example, the plaintiffs showed that counsel's legal analysis was cursory or otherwise obviously flawed. However, this information would be of limited use to the plaintiffs unless they could show that the City knew (or should have known) that the analysis was deficient.")

Case Date Jurisidction State Cite Checked
2016-02-05 Federal NY
Comment:

key case


Chapter: 30.802

Case Name: United States v. Wells Fargo Bank, N.A., 12-CV-7527 (JMF), 2015 U.S. Dist. LEXIS 143814 (S.D.N.Y. Oct. 22, 2015)
(ordering the government to produce documents for an in camera review that might show the government's knowledge of certain Wells Fargo conflicts, which implicates the statute of limitations; "In light of that principle, the Government has already agreed to produce all notes with respect to the two witnesses for which interview notes were used. . . . But Wells Fargo is not satisfied with that, and argues that notes as to all former employees must be produced because they all relate to the 'same subject matter.'. . . Courts have generally held, however, that the disclosure of interview notes from one witness does not require that notes from other witnesses be disclosed. . . . As those Courts have recognized, the point of the waiver doctrine is to prevent prejudice to the opposing party, and any potential prejudice caused by the partial disclosure of notes relating to a particular witness is cured by the disclosure of the remaining notes as to that witness. . . . That the Government decided to list all of the interview notes in one privilege log entry rather than separate them into many entries is beside the point. . . . What matters is the content of the disclosed and withheld documents, not the way they are presented on the privilege log.")

Case Date Jurisidction State Cite Checked
2015-10-22 Federal NY

Chapter: 30.802

Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
(finding the defendant's "good faith" defense to an FLSA claim waived its privilege protection; "[T]he Court finds that KB Home has waived its privilege concerning those communications by injecting into the case its good faith belief in the lawfulness of its classification. That does not end the inquiry, however. This waiver is not limitless; given that waiver stems from the assertion of the good faith defense, the waiver extends only to communications to concerning that classification decision. KB Home has not waived its privilege (or work product) as to prior overtime litigation or other attorney communications to the extent they are not probative on what KB Home decisionmakers were told about the lawfulness of the classification decision."; "'This is likely more of an issue for documents than deposition questions. The corporate representative will presumably only have knowledge of what legal advice the company received. The universe of documents extends beyond that, however, to include communications about other litigation that may not have been directed at the individuals involved in the classification decision.")

Case Date Jurisidction State Cite Checked
2015-07-18 Federal TX

Chapter: 30.802

Case Name: Barker v. Columbus Regional Healthcare System, Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014)
October 22, 2014 (PRIVILEGE POINT)

“Several Courts Deal with the "At Issue" Doctrine: Part II”

Last week's Privilege Point discussed the "at issue" doctrine, which can trigger an attorney-client privilege waiver without the litigant disclosing, relying on, or referring to privileged communications. Most courts recognizing the doctrine apply it only if the litigant affirmatively raises an issue to gain some advantage in litigation, rather than simply denies the adversary's allegations.

In Barker v. Columbus Regional Healthcare System, Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014), the court took a far more expansive approach. The plaintiff claimed that defendants violated the False Claims Act and other statutes by submitting false claims "with the intent to violate the law." Id. at *4. Defendant Columbus disclaimed an "advice of counsel" defense, and also disclaimed any intent to rely on privileged communications — but stated its intent "to offer evidence at trial that it believed its conduct was lawful." Id. at *4-5. The court concluded that Columbus "intend[ed] to do more than merely deny the essential elements of Plaintiff's claim" or "simply to argue that Plaintiff failed to carry its burden of proof." Id. at *11. Instead, the court held that by intending to assert its good faith belief that it had complied with the law, Columbus "injected its belief as to the lawfulness of its conduct." Id. at *7. That triggered a privilege waiver "as to communications relating to the legality of the transactions that form the basis of Plaintiff's claims." Id. The court therefore ordered Columbus to produce "all communications between it and its attorneys" relating to the lawfulness of its pertinent conduct — up to the date Plaintiff filed his compliant. Id. at *12.

Most courts do not recognize such a broad "at issue" doctrine. However, "at issue" waivers represent the most frightening way that litigants can lose their privilege — because "at issue" waivers do not depend on a litigant disclosing, relying on, or referring to privileged communications.

Case Date Jurisidction State Cite Checked
2014-08-29 Federal GA
Comment:

key case


Chapter: 30.802

Case Name: Hawkins v. Stables, 148 F.3d 379, 381, 384 & n.4 (4th Cir. 1998)
(holding that a former wife had waived the attorney-client privilege by answering "no" to the following deposition question: "Is it true or not that Larry Diehl, in his capacity as your [divorce] attorney, told you to take a wiretap off the phone at the marital residence?"; at a later trial the former wife asserted the attorney-client privilege and refused to answer questions about her conversations with Diehl; Diehl also refused to answer questions when called to the stand at the trial; "[a]lthough the question asked during the deposition clearly elicited information regarding confidential communications Stables may have had with Diehl, and was objectionable on its face on the ground of attorney-client privilege, neither Stables nor her attorney asserted an objection. In response to the question, Stables simply stated that she never had a discussion of the matter with her attorney. By answering the question as she did, Stables both waived her privilege and provided probative evidence that she had had no conversation with her attorney on the subject of a phone tap. Without a communication, there is nothing to which the privilege can attach. Based on her own testimony, Stables cannot meet her burden of proof [to move the privilege's applicability, which the district court had erroneously placed on the former husband rather than the former wife]" (footnotes omitted); holding that Stables' waiver of the privilege "also waives the privilege as to the subject matter of the disclosure"; "[i]n this case, the subject matter revealed related to the wiretap. Thus, on remand Diehl's testimony should be limited to the wiretapping issue. Stables' subject matter waiver does not open up the possibility of a fishing expedition of all confidential communications that she had with Diehl during the course of the divorce representation")

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

Chapter: 30.803

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)
(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "Having determined that there was a waiver, it is necessary to determine its scope. In its motion to compel, Putnam is seeking 'all documents concerning the 'economic consultant' analysis,' including (1) any reports, (2) any documents provided to the consultants in preparation for the reports, (3) any communications between FGIC, its lawyers, and the consultants, and (4) documents sufficient to identify the consultants and their qualifications. . . . The determination of the scope of a waiver of the attorney-client and work-product privileges 'lies within the sound discretion of the district court.'"; "[A]lthough FGIC may have put the analysis itself at issue by utilizing it in litigation, there is no indication that its disclosure was done in an incomplete, manipulative, or misleading manner, and none of the ancillary documents that Putnam seeks were utilized in the SAC or before the Second Circuit. FGIC is therefore only required to produce the analysis document referred to in the SAC.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal NY

Chapter: 30.803

Case Name: Koss v. Palmer Water Dep't, Civ. A. No. 12-30170-MAP, 2013 U.S. Dist. LEXIS 144702, at *3 (D. Mass. Oct. 7, 2013)
(analyzing the Faragher-Ellerth doctrine; "As the court stated in its original order, 'when a Title VII defendant affirmatively invokes a Faragher-Ellerth defense [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)] that is premised . . . on the results of an internal investigation, the defendant waives the attorney-client privilege and work product protections for not only the report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-10-07 Federal MA B 5/14

Chapter: 30.803

Case Name: Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *10 (D. Neb. Jan. 9, 2013)
(finding the temporal scope of a company's waiver of its privilege protection by relying on an investigation into sexual harassment charges; "In this case, Davis and Duncan complained of alleged harassment in August, 2009. In response, Opportunity Education conducted an internal investigation that was completed by Levitt and Ricketts in September, 2009. In November, 2009, two months after her initial complaint of harassment, Davis submitted a separate complaint of alleged retaliation. Then, in November, Opportunity Education hired outside counsel, Turnbull, to conduct an investigation. Given the facts here, the Court finds that the subject of Defendants' waiver is Turnbull's November/December 2009 investigation, not the internal investigation conducted earlier. Therefore, the Court rejects Plaintiffs' argument that the attorney-client privilege was waived as to the other investigatory materials.")

Case Date Jurisidction State Cite Checked
2013-01-09 Federal NE B 7/13

Chapter: 30.1504

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 134 n.7 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "[T]he because of test is more lenient than the 'primary motivating purpose' test used by the Third and Fifth Circuits.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13