Chapter 25 Express Waiver

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 25

EXPRESS WAIVER

25.1 INTRODUCTION

Express waiver involves disclosure of attorney-client privileged communications.

• Some principles apply to all express waivers, whether intentional or inadvertent.

25.2 DIFFERENT TYPES OF EXPRESS WAIVERS

Unfortunately, courts sometimes use confusing nomenclature when describing different types of waiver.

• For instance, some courts use the term "selective waiver" to mean a disclosure to one outsider that does not permit other outsiders access to the disclosed communication, and the term "partial waiver" to mean a disclosure of some portion of a privileged communication that does not require disclosure of the rest.

25.3 DISCLOSURE DOES NOT AUTOMATICALLY WAIVE THE PRIVILEGE

Disclosure of privileged communications does not automatically waive privilege protection.

• For instance, paralegals' theft and disclosure on the Internet of lawyers' files does not waive any clients' privilege protection.

25.4 HOW WAIVER CAN OCCUR

An express waiver can occur through the disclosure of documents or oral communications.

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25.5 DISCLOSURE VERSUS MERE ACCESS TO A COMMUNICATION

Courts have addressed whether an express waiver occurs only upon actual disclosure of a privileged communications, or upon giving third parties access to such privileged communications. [25.501]

Most courts hold that an express waiver can occur only upon actual disclosure of privileged communications. [25.502]

• For instance, giving a litigation adversary access to one hundred boxes of documents generally does not waive the privilege for a protected document in box one hundred—if the producing litigant retrieves the privileged document before the adversary starts to review documents in that box.

• A few courts hold that merely providing access causes a waiver.

In some situations, privilege protection essentially "evaporates" even before disclosure of privileged communications—if clients form the intent to disclose them. ¹ [25.503]

Ethics issues can arise if producing litigants alert the receiving parties that they have inadvertently disclosed privileged communications. [25.504]

25.6 DISCLOSURE OF NON-PRIVILEGED COMMUNICATIONS OR FACTS

An express waiver usually can occur only upon disclosure of a privileged communication. [25.601]

• Thus, an express waiver usually cannot occur upon disclosure of: a non-privileged communication or document [25.602]; the non-privileged fact that a privileged communication occurred [25.603]; non-protected historical facts [25.604], including historical facts uncovered in an investigation. [25.605]

This principle can help corporations avoid waiving their privilege when cooperating with the government.

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Courts properly analyzing waiver principles hold that disclosing historical facts to the government does not cause a waiver, because those facts do not deserve privilege protection. [25.606]

• Unfortunately, some courts do not seem to understand this basic principle, and some courts' ambiguous language makes it difficult to determine the approach they take.

Disclosure of clients' position on some issue does not waive privilege protection, even if that position reflects advice clients have received from their lawyers. [25.607]

VA Thus, clients submitting "position papers" to the government should not waive the privilege protecting underlying communications. ² [25.608]

Ironically, clients' denial that they communicated with lawyers can sometimes cause a waiver. [25.609]

• Such waivers

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