Chapter 30 Subject Matter Waiver

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

Chapter 30

SUBJECT MATTER WAIVER

30.1 INTRODUCTION

Clients who expressly waive their attorney-client privilege might be compelled to disclose additional previously undisclosed privileged communications on the same subject matter.

• Courts call this a "subject matter" waiver.

Implied and "at issue" waivers necessarily result in subject matter waivers, because they do not involve the initial disclosure of privileged communications.

30.2 FAIRNESS OF A SUBJECT MATTER WAIVER

The subject matter waiver doctrine rests on notions of fairness.

• Courts assess whether it is fair for a client who has waived privilege protection for some communications to withhold other communications on the same subject.

• Federal Rule of Evidence 502 explicitly mentions fairness as the key factor

30.3 NECESSITY OF A WAIVER

Because subject matter waivers can occur only if there has been a waiver, in some situations litigants undertake an odd reversal of normal positions. [30.301]

A subject matter waiver can occur only if there has been a waiver. ¹ [30.302]

This basic principle can generate strange scenarios. [30.303]

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Because disclosing non-privileged communications does not waive privilege protection, it cannot result in a subject matter waiver.

• This basic principle sometimes induces litigants to argue that communications they disclosed never really deserved privilege protection, so that their disclosure did not waive privilege protection--thus precluding a possible subject matter waiver.

• Adversaries sometimes take exactly the opposite position, hoping to successfully argue for a subject matter waiver.

Litigants face a dilemma when considering whether to produce arguably privileged communications whose disclosure would not cause any harm. [30.304]

• Such litigants might worry that adversaries will argue that the litigants intentionally waived their privilege protection, resulting in a subject matter waiver. However, litigants withholding arguably privileged but harmless communications might frustrate or even anger judges.

• Rule 502 reduces this risk, as discussed below.

30.4 INTENTIONAL EXPRESS WAIVER: JUDICIAL SETTING

Intentional express waiver of privileged communications in a judicial setting usually results in a subject matter waiver. [30.401]

Clients' testimonial use of privileged communications in a judicial setting usually results in a subject matter waiver. [30.402]

VA The Virginia Supreme Court ² held that a client's offering of privileged communications or testimony triggered a subject matter waiver.

Even non-testimonial disclosures during litigation can result in such waivers. [30.403]

Rule 502 explicitly indicates that such use can result in subject matter waivers. [30.404]

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•	The rule's explanatory notes explain that a subject matter waiver can occur when "a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner." 3
•	Rule 502's legislative history reinforces this position. 4
VA	A Virginia statute 5 parallels Federal Rules of Evidence 502 in limiting both the circumstances when disclosure of privileged or work product-protected communications causes a waiver, and the scope of any waiver.

Rule 502 dramatically reduces the stakes in any dispute over whether discovery disclosure was intentional or inadvertent—because either way litigants should be able to avoid subject matter waivers by disclaiming any use of the disclosed communication.

Few cases deal with the subject matter implications of former joint clients using privileged communications in later disputes between them. ⁶ [30.405]

Separate rules govern the impact of disclosure to testifying experts. ⁷ [30.406]

30.5 AVOIDING A SUBJECT MATTER WAIVER

Not surprisingly, litigants often seek to avoid subject matter waivers. [30.501]

Litigants sometimes enter into agreements with adversaries under which litigants' disclosure of privileged communications does not result in a subject...