("Third party disclosure has two effects on the attorney-client privilege. If the communication between attorney and client takes place in the presence of a third party, and that third party hears the communication contemporaneously with its being made, then the attorney-client privilege for that information never existed. . . . If, on the other hand, the communication took place in private, between the attorney and the client alone, then the privilege comes into existence at the time the communication occurred. Subsequent disclosure to a third party then waives the privilege . . . . Thus, it is technically proper to speak of waiver only in the case where the attorney or client communicates the privileged information to a third party after the privilege has come into existence. If the third party is present when the communication is made, it is not technically correct to say that the client has 'waived' the privilege because one cannot waive what never existed. Regardless of whether the privilege ever existed or whether it existed and the client waived it, the result for the communication revealed is the same. Under the common law of attorney-client privilege, the parties privy to the communication must zealously and carefully guard against disclosure to third parties. Courts in this area take almost a strict liability approach to third party disclosure. If the information ends up in the hands of a third party, courts don't want to hear how it got there. Once in the hands of a third party, the privilege, if it ever existed, is lost." (citations omitted; footnote omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)
Case Date |
Jurisdiction |
State |
Cite Checked |
1998-01-01 |
Federal |
VA |
|