August 23, 2017 (PRIVILEGE POINT)
"Drawing the Line Between Waiver and Non-Waiver: Part III"
The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.
In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).
Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.