2.6 Waiver

• Library: Civil Discovery in Virginia (Virginia CLE) (2017 Ed.)

2.6 WAIVER

2.601 Introduction. Even if the invocation of a privilege protects material from discovery, the protection can evaporate if the privilege is waived. The following discussion addresses the concept of waiver in general terms and provides some examples of how the doctrine of waiver applies to particular privileges. For an analysis of waiver of the attorney-client privilege, see Chapter 12 of this book.

2.602 Waiver by Voluntary Disclosure. A party who voluntarily exposes privileged information waives the privilege pertaining to that information. ²³¹ Waiver by disclosure may be expressed or implied. ²³² In determining whether a party has impliedly waived a privilege, courts consider whether the party implicitly intended to waive the privilege and also whether considerations of "fairness and constancy" militate in favor of disclosure. ²³³ Regarding the second element, "[t]here is always also the objective consideration that when [a party's] conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder." ²³⁴ For example, an implied waiver by voluntary disclosure occurs when a party communicates otherwise privileged information under circumstances that allow persons outside the privilege to intercept the communication. ²³⁵ No waiver of the privilege occurs, however, if the person intercepting the communications does so surreptitiously or intentionally. ²³⁶

2.603 Waiver by Inadvertent Disclosure. A party who accidentally reveals privileged information waives the privilege if gross

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negligence or a failure to take reasonable precautions to avoid the disclosure caused the accidental disclosure. ²³⁷ In determining whether a party has waived a privilege by inadvertent disclosure, courts consider several factors: (i) the reasonableness of the precautions the party took to prevent inadvertent disclosure; (ii) the time taken to rectify the error once disclosure occurs; (iii) the scope of the discovery; (iv) the extent of the disclosure; and (v) the overriding issue of fairness. ²³⁸ "None of these factors is independently dispositive, and the court must also consider any other factors arising from the posture of the case at bar that have a material bearing on the reasonableness issues." ²³⁹ For example, if a party must produce a substantial quantity of documents with only a short time to...