The “subject matter” doctrine usually requires a litigant who has disclosed some privileged documents to produce all privileged documents on the same subject matter. For obvious reasons, a litigant hoping to avoid this result will argue that documents previously disclosed were not privileged after all—a position that sometimes produces a bizarre reversal of normal positions.
In Sinclair Oil Corp. v. Texaco, Inc., 208 F.R.D. 329, 331 (N.D. Okla. 2002), the court addressed what it called the “unique circumstance” presented by Sinclair’s having shared documents with Texaco. To avoid the subject matter waiver, Sinclair was arguing that its documents were not privileged. The court disagreed with Sinclair, found that the documents it shared with Texaco were privileged, and therefore found a subject matter waiver.
Litigants who have previously disclosed arguably privileged documents may find themselves in the odd position of disclaiming—rather than claiming—privilege protection for those documents, in order to avoid the harsh subject matter waiver.