State Court Explores Implied Waiver Issue

September 8, 2004

Analyzing implied waivers has always been more difficult than addressing express waivers, because implied waivers result from some reference to privileged communications rather than disclosure of those communications. For instance, filing an “advice of counsel” affirmative defense clearly results in an implied waiver, but a client testifying that he or she spoke to a lawyer before taking some action usually does not result in an implied waiver.

In Brandon v. West Bend Mutual Insurance Co., 681 N.W.2d 633 (Iowa 2004), the plaintiff suing West Bend argued that West Bend had impliedly waived the privilege because its in-house lawyer had verified the company’s interrogatory answers. The court rejected “the notion that a person waives a privilege by verifying the accuracy of answers to interrogatories or by participating in framing the answers.” Id. at 642. As the court explained, “the determinative factor rests with the actual content of the answers provided to the interrogatories. If the answers reveal privileged communications, then waiver can occur.” Id.

It will be interesting to follow this case, because West Bend’s in-house lawyer has surely subjected himself to a deposition, and it would be difficult for him to support his verification of the answers without actually disclosing communications through which he verified their accuracy – which presumably would cause an express waiver.