Chapter 29 The “at Issue” Doctrine

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

Chapter 29

THE "AT ISSUE" DOCTRINE

29.1 INTRODUCTION

The "at issue" doctrine represents the most extreme form of implied waiver.

29.2 CONFUSION ABOUT THE "AT ISSUE" DOCTRINE

Some courts use the term "at issue" in discussing intentional express waivers or classic implied waivers. ¹

• Any such confusion about terminology normally has little impact on courts' actual analysis.

29.3 NATURE OF THE "AT ISSUE" WAIVER DOCTRINE

At issue waivers present an enormous danger, because they can arise even if clients and their lawyers do not disclose, rely on, or even refer to, privileged communications.

• Lawyers' instincts normally will cause them to recognize the possible waiver impact of express waivers or implied waivers, but they may not see at issue waivers coming until it is too late.

29.4 SPECTRUM OF JUDICIAL APPROACHES

Courts take varying approaches to at issue waivers. [29.401]

Some courts find at issue waivers only if litigants explicitly rely on privileged communications or the fact of such privileged communications. [29.402]

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• This approach essentially mirrors the classic implied waiver doctrine.

• Many courts refer to this type of waiver using the names of the Third Circuit decision in Rhone-Poulenc² or the Second Circuit decision in Erie. ³

In contrast, some courts apply what they call the "anticipatory waiver" doctrine. [29.403]

• Under this approach, courts examine whether litigants asserting a certain position will inevitably have to disclose and rely on privileged communications.

The most extreme type of at issue doctrine waiver is usually called the Hearn doctrine, after an Eastern District of Washington case. ⁴ [29.404]

VA The Eastern District of Virginia ⁵ noted that the Western District of Virginia has cited the expansive Hearn case while the Fourth Circuit has cited the more limited Rhone Poulenc case.

29.5 HEARN DOCTRINE AND RELEVANT FACTORS

The Hearn doctrine represents the purest form of at issue waiver. [29.501]

Under the Hearn doctrine, litigants affirmatively raising some critical issue might cause an at issue waiver if fairness requires that adversaries be given access to otherwise privileged communication. [29.502]

• As explained below, the Hearn doctrine can apply when litigants seek some advantage in litigation by claiming certain

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knowledge, asserting ignorance of an important fact, or pointing to some action they took or to some relevant inaction.

The Hearn doctrine continues to cause controversy. [29.503]

• Some courts explicitly reject the Hearn approach.

Courts applying the Hearn doctrine agree on certain basic prerequisites.

First, litigants must affirmatively raise an issue, not simply deny adversaries' assertions. [29.504]

VA The Western District of Virginia ⁶ declined to apply the Hearn doctrine when a party did not assert advice of counsel as an affirmative defense.

Second, the issue involving privileged communications must be more than just relevant. Courts have articulated various standards for assessing issues' importance. [29.505]

• Examples include denial of discovery would prejudice the adverse party; the privileged communications represent important evidence, the denial of which would adversely affect the adversary's right to defend itself in a meaningful way; the adverse party has substantial need for the privileged communications; the privileged communications are vital; the privileged communications are crucial; the privileged communications are at the very heart of the affirmative relief sought; the privileged communications are integral to the outcome; the privileged communications are in all probability outcome determinative and go to the very heart of the case; the privileged communications are probably outcome determinative; the privileged communications are outcome determinative.

Third, privileged communications must be the only source of the necessary information. [29.506]

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29.6 HEARN DOCTRINE: ASSERTIONS OF KNOWLEDGE

Courts disagree about whether litigants' assertion of their knowledge results in at issue waivers. [29.601]

Some courts find that litigants' assertion of their knowledge results in at issue waivers. [29.602]

• Examples include transactional parties' intent and the client's understanding of the transaction; good faith and reasonable basis for the litigant's position; intent to comply with what the litigant understood to be the law; reliance on a "good faith immunity defense" under New York law; disclosure of their knowledge to a third party; denial of

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