Chapter 31 Scope of a Subject Matter Waiver

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

Chapter 31

SCOPE OF A SUBJECT MATTER WAIVER

31.1 INTRODUCTION

Courts finding attorney-client privilege subject matter waivers must then determine their scope.

31.2 GENERAL APPROACH

As with application of the subject matter waiver doctrine itself, basic notions of fairness guide courts' determination of waivers' scope.

• Rule 502 explicitly directs courts to focus on fairness.

31.3 TYPES OF SCOPE: HORIZONTAL AND TEMPORAL

Courts assessing waivers' scope examine two elements. [31.301]

VA The Eastern District of Virginia ¹ analyzed the scope of a subject matter waiver.

First, courts determine what could be called waivers' "horizontal" scope. [31.302]

• This analysis looks at the withheld communications' context, to see if they concern the same topic as the disclosed communications, or the issues implicated in implied or at issue waivers.

Second, courts determine what could be called waivers' "temporal" scope. [31.303]

• This analysis focuses on the withheld communications' timing.

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31.4 SCOPE OF INTENTIONAL EXPRESS WAIVERS

Most intentional express waiver cases involve patents, which can paint a somewhat misleading picture. [31.401]

The few decisions in nonpatent cases take a fairly narrow view of intentional express waivers' horizontal and temporal scope. [31.402]

In patent cases, most courts assessing waivers find a narrow horizontal scope, but a broad temporal scope. [31.403]

• This results from judicial recognition that patent infringement amounts to a continuing wrong—so infringers learning at

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