Chapter 26 Intentional Express Waiver

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

Chapter 26

INTENTIONAL EXPRESS WAIVER

26.1 INTRODUCTION

An express waiver can occur when someone authorized to waive the attorney-client privilege intentionally discloses privileged communications to someone outside the attorney-client relationship.

26.2 ANALYSIS OF THE EFFECT OF DISCLOSURE

An intentional express waiver can occur upon pre-existing privileged communications' disclosure to third parties outside privilege protection.

• This contrasts with the absence of any privilege protection ab initio for communications between clients or their lawyers and such third parties, and otherwise privileged communications in which such third parties participate.

26.3 DISCLOSURE IN THE LITIGATION CONTEXT

Intentional disclosure of privileged communications in a litigation context nearly always waives privilege protection. [26.301]

• Examples include to courts [26.302]; to a grand jury, despite the general secrecy of grand jury proceedings [26.303]; in publicly-filed pleadings [26.304]; during testimony in court or in a deposition. [26.305]

Disclosure of privileged communications to a testifying expert generally involves work product issues. ¹ [26.306]

Disclosure during litigation document productions can waive privilege protection. [26.307]

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The same issue sometimes arises in connection with other discovery. [26.308]

Disclosure to third party witnesses generally waives privilege protection. [26.309]

Courts disagree about the waiver impact of disclosing privileged communications to adversaries during settlement negotiations. Most courts find a waiver, despite the law's general encouragement of such settlements. [26.310]

26.4 DISCLOSURE TO THE GOVERNMENT: STATUTES

In some very specific contexts, disclosure to the government does not waive privilege protection. [26.401]

Certain industry-specific statutes and regulations governing financial institutions allow disclosure of privileged communications to the government—without resulting in waivers that permit other third parties access to the same communications. ² [26.402]

Some similarly specific state statutes and case law have the same effect. [26.403]

26.5 DISCLOSURE TO THE GOVERNMENT: COMMON LAW

General common law waiver principles usually apply to privileged communications' disclosure to the government. [26.501]

If the government acts as a regular civil litigant, normal waiver rules generally apply. [26.502]

• For instance, governments can sometimes participate in valid common interest agreements. ³

Most courts find that intragovernmental disclosure does not waive the government's privilege protection. ⁴ [26.503]

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Governments occasionally seize documents, some of which might deserve privilege protection. [26.504]

• Most courts allow governments to establish what they call "taint teams" to conduct privilege reviews of such seized documents—lawyers screened from their government colleagues handling the underlying matter.

Most courts find that disclosing privileged communications to the government waives privilege protection. [26.505]

• Under this majority view, confidentiality agreements do not prevent such waivers.

The same general rule applies to work product, despite its more robust protection. ⁵ [26.507]

26.6 FEDERAL RULE OF EVIDENCE 502: SELECTIVE WAIVERS

Federal Rule of Evidence 502 was initially intended to allow disclosure of privileged communications to the government without allowing other third parties access to those communications. [26.601]

However, the Rule's drafters dropped this proposed "selective waiver" provision. [26.602]

• Some courts ignore what seems to be Rules 502's clear legislative history, and enter orders permitting such selective waivers. [26.603] This is discussed below.

26.7 FACTS DISCLOSED TO THE GOVERNMENT

Because historical facts do not deserve privilege protection, disclosing such facts to the government should not waive privilege protection. ⁶

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26.8 CORPORATE NEGOTIATIONS OR TRANSACTIONS

Intentional disclosure during corporate negotiations or transactions usually waives privilege protection, but with some possible exceptions. [26.801]

Corporations normally waive their privilege protection by disclosing privileged communications during transactional negotiations. [26.802]

Corporations disclosing privileged communications during pre-acquisition due diligence usually waive their privilege protection. [26.803]

• One court found that such a disclosure did not waive privilege protection, citing the societal benefits of due diligence.

Corporations' acquisition of privileged communications upon buying another corporation usually does not waive privilege protection. [26.804]

•	Such disclosure does not occur during an adversarial process—but instead takes place upon the privilege's new owner's purchase.
VA	The Eastern District of Virginia 7 held that a parent waived its attorney client privilege by leaving documents in a spun subsidiary.

During corporate negotiations or transactions, corporations sometimes disclose privileged communications to other third parties such as agents or consultants. [26.805]

• Such disclosures usually waive privilege protection.

Other corporate transactions can result in the same waiver impact. [26.806]

Because the work product doctrine provides more robust protection than the privilege, disclosing work product during corporate negotiations or transactions often does not waive that separate protection. ⁸ [26.807]

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26.9 INTRACORPORATE DISCLOSURE

Intracorporate disclosures can waive privilege protection, even if no outside third party gains access to privileged communications. [26.901]

Most courts hold that corporations' disclosures to affiliated corporations do not waive their privilege protection. [26.902]

• Most courts apply this basic principle to wholly owned affiliates, but few courts have analyzed the effect of such disclosures to partially owned corporate affiliates.

Disclosure to employees in the "control group" does not waive privilege protection in states following the "control group" standard. [26.903]

In Upjohn states, disclosure to employees with a "need to know" does not waive privilege protection. ⁹ [26.904]

VA The Eastern District of Virginia ¹⁰ and the Western District of Virginia ¹¹ held that intra-corporate privileged communications lose their protection if disclosed beyond those with a "need to know."

In contrast, intracorporate disclosure to employees with no "need to know" can waive corporations' privilege protection.

• This "need to know"

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