Section 14.10 “Sword and Shield”/”Fairness” Waiver

• Library: Evidence 2017

B. (§14.10) “Sword and Shield”/”Fairness” Waiver

Privilege may also be waived when it is invoked in some fundamentally unfair way. The so-called “fairness doctrine” is grounded in the notion that it is unfair to “permit a party to make use of privileged information as a sword” when it is advantageous for the privilege holder to do so, “and then as a shield” when the party opponent seeks to use privileged information that might be harmful to the privilege holder. In re von Bulow, 828 F.2d 94, 101 (2^nd Cir. 1987). The...