Privilege holders can waive their privilege protection without disclosing
any privileged communications — for instance, by relying on an "advice of
counsel" defense. But all or most courts wisely reject adversaries' attempts to trigger a "gotcha" advice of counsel implied waiver.
In Kleeberg v. Eber, plaintiffs argued that defendants had waived
their attorney-client privilege protection as to "any legal advice they
received" about the pertinent transactions, "because [defendants] testified
at their depositions that they relied on the advice of counsel to
effectuate some of the transactions at issue in this case." No. 16-CV-9517
(LAK) (KHP), 2019 U.S. Dist. LEXIS 80428, at *22 (S.D.N.Y. May 13, 2019).
The court bluntly rejected plaintiffs' argument, noting that "it is well
established that merely testifying that an attorney was consulted, without
revealing the substance of those communications, does not waive privilege." Id.
Most corporate deponents would have to acknowledge that they relied on
lawyers' advice before consummating transactions or taking other important
steps. If such limited deposition testimony triggered a waiver, the
privilege could be easily overcome. Instead, corporations waive their
privilege only if their employees disclose that advice, or if they defend
themselves by explicitly relying on the fact of that advice.