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.

The “at issue” doctrine sometimes trumps a privilege claim if a litigant puts “at issue” its mental state, and it would be unfair to the adversary for the litigant to withhold otherwise privileged evidence about communications between the litigant and a lawyer.

In Minebea Co. v. Papst, 355 F. Supp. 2d 518 (D.D.C. 2005), Minebea and others claimed that they had been defrauded by defendants’ misrepresentations about patent rights. Although Minebea “steadfastly maintained that it will not rely on any privileged material in presenting its case-in-chief,” the court held that Minebea’s claim of “justifiable reliance” on Papst’s alleged fraud triggered the “at issue” waiver. Id. at 524, 525. As the court explained: “[H]ow could a jury fairly assess whether Minebea relied exclusively on Papst if deprived of testimony that Minebea had considered information from lawyers and of documents reflecting communications with lawyers?” Id. at 524.

Not all courts take such a broad view of the “at issue” waiver doctrine, but litigants placing their knowledge (or lack of knowledge) “at issue” should always assess the risk of such a waiver.