As if waiving privilege protection (either intentionally or inadvertently)
was not frightening enough, the sinister subject matter waiver doctrine
might force disclosure of additional privileged documents on the same
topic. At the high-water mark of the subject matter waiver doctrine, some
courts even held that inadvertently waiving privilege in a document
production triggered a subject matter waiver.
In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, Civ. A. No. 14 MD 2542 (VSB) (SLC), 2020 U.S. Dist. LEXIS 99206 (S.D.N.Y.
June 5, 2020), Magistrate Judge Cave continued the welcoming trend toward
limiting subject matter waiver risk. The court dealt with defendant’s
argument that plaintiff triggered a subject matter waiver by “producing a
partially redacted . . . [e]mail and [because of] the limited deposition
testimony of the 30(b)(6) witness.” Id. at *32.
The court recited holdings from several earlier cases narrowing the subject
matter waiver doctrine: “the subject matter waiver is appropriate only
‘when a party uses an assertion of fact to influence the decisionmaker
while denying its adversary access to privileged materials’”; “‘[s]ubject
matter waiver is reserved for the rare case where a party either places
privileged information affirmatively at issue, or attempts to use
privileged information as both a sword and a shield in litigation.’” Id. at *26 (citations omitted). The In re Keurig court
rejected defendant’s subject matter waiver argument, noting that it “has
not shown that [plaintiff], as yet, intends to rely on the [redacted email]
‘to influence a decision maker.’” Id. at *30 (citation omitted).
Continuing its analysis, the court stated that a subject matter waiver “may
arise in the future in this litigation, for example, if [plaintiff]’s
counsel were to question a witness about the redacted portions of the
[arguably privileged email] during in-court testimony or use the [email] in
support of summary judgment, but those events have not yet occurred.” Id.
This increasingly common and appropriate approach should comfort lawyers
agonizing over producing arguably privileged emails, and (perhaps more
importantly) lawyers whose deposition witnesses blurt out some privileged
communication during a deposition. Disclaiming any intent to rely on those
“to influence a decision maker” should eliminate a subject matter waiver