The “at issue” doctrine represents an extreme form of implied waiver. A party can trigger an “at issue” waiver by affirmatively asserting some position, even without relying on or referring to legal advice — if fairness dictates that the adversary should have access to the party’s privileged communications.
In Burress v. Union Pacific Railroad, No. 1:01CV00072-WRW, 2007 U.S. Dist. LEXIS 1749 (E.D. Ark. Jan. 8, 2007), a ConAgra employee was hit by a boxcar operated by a railroad. He sued the railroad, which then sought indemnity from ConAgra. When the employee settled his claim against the railroad for $5,000,000, ConAgra amended its Answer to affirmatively assert that the “settlement was unreasonable.” Id. at *3. The railroad sought privileged communications between ConAgra and its lawyer. The court found that ConAgra’s assertion had triggered an “at issue” waiver: “ConAgra’s alleged legal understanding of the true extent of liability and damages is at the heart of its refusal to indemnify [the railroad]. Thus, ConAgra has asserted a claim that puts its attorney’s advice at the center of this litigation. . . . In sum, ConAgra has asserted a claim that, in fairness, calls for the disclosure of all privilege communications.” Id. at *6.
Although not every court would take this expansive a view, this case highlights the frightening nature of the “at issue” doctrine — which corporations might trigger without realizing it.