Waivers Occur Only With Voluntary Disclosures

June 9, 2004

Giving the increasing judicial scrutiny of companies sharing protected information with the government and others – as well as the frightening prospects of a “subject matter waiver” – it is easy to overlook a basic principle about waivers in general.

In Carnival Cruise Lines, Inc. v. Doe, 868 So. 2d 1219 (Fla. Dist. Ct. App. 2004), plaintiff claimed that she had been raped by five crew members during a cruise. She sought witness statements that Carnival had prepared after the incident, and argued that Carnival had waived any work product protection by turning the statements over to the FBI. The court found that Carnival had not waived the work product protection, because a federal grand jury had subpoenaed the witness statements – so that Carnival’s disclosure was not voluntary.

Some decisions analyze to what extent a company must resist a subpoena to avoid a finding that it has voluntarily turned over documents, but lawyers should remember the basic principle that a waiver only occurs with the voluntary disclosure of protected information.