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.