Chapter 50 Subject Matter Waiver: Applicability and Scope

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

Chapter 50

SUBJECT MATTER WAIVER: APPLICABILITY AND SCOPE

50.1 INTRODUCTION

The risk of subject matter waivers can dramatically increase the stakes in any work product waiver analysis.

• If a waiver results in a subject matter waiver, the waiving litigant must disclose all other protected documents on the same subject matter as that involved in the original waiver.

Although courts disagree about subject matter waivers' contours in the work product context, courts generally agree that such broad waivers arise less often in the work product context than in the attorney-client privilege context.

50.2 COMPARISON TO THE ATTORNEY-CLIENT PRIVILEGE

Most courts recognize that in the attorney-client privilege context intentional disclosure of, or reliance on, privileged communications to gain some advantage in litigation results in a subject matter waiver. ¹

Courts disagree about whether a similar principle applies in the work product context.

•	Some courts state in the abstract that the subject matter waiver doctrine does not apply in the work product context.
VA	The Eastern District of Virginia 2 held that work product doctrine subject matter waiver is "much less sweeping" than in the privilege context.

This ambivalence rests in part on work product's nature.

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• Litigants and prospective litigants frequently create work product intending to ultimately disclose it. ³

• Some courts correctly recognizing work product's "intensely practical" nature either refuse to apply the subject matter waiver, or apply it only narrowly.

50.3 WAIVER OF THE PRIVILEGE BUT NOT WORK PRODUCT DOCTRINE PROTECTION

The attorney-client privilege provides a much more fragile protection than the work product doctrine.

• Disclosing privileged communications to nearly any third party usually waives that protection. ⁴

Because the work product doctrine provides a more robust protection than the privilege, disclosing work product to third parties does not automatically waive that separate protection. ⁵

This mismatch of waiver doctrines means that disclosing communications or documents protected both by the privilege and the work product doctrine might waive the former but not the latter.

• Chapter 48 provides examples, the most famous of which involves Martha Stewart—who waived her privilege but not her work product protection by disclosing to her own daughter an email covered by both protections. ⁶

50.4 SUBJECT MATTER WAIVER IN THE WORK PRODUCT CONTEXT

As in many other areas, the subject matter waiver doctrine applies differently in the work product context than the privilege context. [50.401]

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Federal Rule of Evidence 502 applies to both protections, and limits subject matter waivers to litigants' deliberately misleading use of protected documents in litigation. ⁷ [50.402]

VA A Virginia statute ⁸ parallels Federal Rules of Evidence 502 in limiting both the circumstances when disclosure of privileged or work product-protected

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