Court Analyzes the Implied Waiver Doctrine

June 16, 2004

Implied waivers occur when a client relies on the fact of a protected communication rather than disclosing its substance. Because the analysis of such reliance can be more difficult than analyzing an actual disclosure, courts sometimes struggle when assessing implied waivers.

In Weizmann Institute of Science v. Neschis, 00 Civ. 7850 (RMB)(THK) & 01 Civ. 6993 (RMB)(THK), 2004 U.S. Dist. LEXIS 4254 (S.D.N.Y. Mar. 16, 2004), plaintiffs were foundation beneficiaries who were seeking to avoid any res judicata effects of an earlier arbitration. They argued that they had been compelled to participate in the arbitration by Liechtenstein law. The court concluded that plaintiffs’ “compulsion” defense “places their attorneys’ opinions, advice and decision-making directly in issue” – thus impliedly waiving the privilege. Id. at *16-17. The court concluded that “fairness dictates” that the plaintiffs produce otherwise privileged documents “unless they agree to forego the defense.” Id. at *19.

Litigants are more likely to stumble into an implied waiver than into an express waiver, because the former can arise from litigation positions rather than the actual disclosure of privilege communications.