Disclosing privileged communications to gain some advantage can sometimes trigger a subject matter waiver, requiring disclosure of additional related communications. Courts agree that fairness dictates the existence and scope of such subject matter waivers. Despite subject matter waivers’ inherently unpredictable nature, some courts get it right.
In DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019), plaintiff claimed that a party’s outside counsel triggered a subject matter waiver by filing a declaration stating that: (1) the client’s general counsel “has advised me that as far as he knew,” the client never received a “cease and desist letter” from plaintiff; and (2) the client “has advised me” that the pertinent trade name “is not important to it,” and that the client would stop using it. The court rejected plaintiff’s argument seeking a subject matter waiver, noting that plaintiff would not be asserting a waiver if “[the party’s] counsel had appeared in court” to say the same things. Id. at *4. As the court explained, “[l]awyers routinely make such representations to courts,” and “one of the basic functions of an attorney is to communicate a client’s positions to the court.” Id. at *5. While acknowledging that “a more thorough attorney” might have submitted the client’s supporting declarations, “the shortcut taken in this case, in context of administrative motion to extend the time, does not in fairness call for a broad waiver of privilege.” Id. at *5-6.
While it is always risky for lawyers to quote their clients (or vice versa), fairness sometimes prevails to prevent a subject matter waiver.