Who Has the Burden of Proving Waiver of the Attorney-Client Privilege?

April 14, 2004

All courts agree that the party asserting the attorney-client privilege has the burden of establishing the privilege. But if a waiver issue arises, who has the burden on that issue?

In The Times-Picayune Publishing Corp. v. Zurich American Insurance Co., Civ. A. No. 02-3263 Section “M” (2), 2004 U.S. Dist. LEXIS 1027, at *26 (E.D. La. Jan. 26, 2004), the court held that “[o]nce a claim of privilege has been established, the burden of proof shifts to the party seeking discovery to prove any applicable exception to the privilege, such as waiver.” Other courts take exactly the opposite position. See, e.g., Wells v. Liddy, 37 Fed. Appx. 53, 65 (4th Cir. 2002).

Because waiver can be such an important part of fights over the attorney-client privilege, lawyers should familiarize themselves with the applicable courts’ allocation of the burden.