Most courts find that a litigant’s voluntary production of a privileged communication during litigation triggers a “subject matter” waiver that requires the litigant to produce other communications on the same subject (the same harsh rule does not generally apply in the work product context). Because producing a non-privileged communication does not cause a waiver (and thus does not trigger a subject matter waiver), a producing party sometimes argues that a document it produced did not deserve privilege protection — while the receiving party argues that it did.
In Hotwork-USA, LLC v. Excelsius International, Ltd., Civ. A. No. 04-505-KSF, 2007 U.S. Dist. LEXIS 19803 (E.D. Ky. Mar. 2, 2007), the court dealt with this odd reversal of roles. Defendants claimed that plaintiff Hotwork had triggered a subject matter waiver by producing a privileged e-mail. Hotwork vigorously argued that the e-mail did not deserve privilege protection. Of course, in most situations the producing party asserts privilege protection, and its adversary argues otherwise. In this case, the court agreed with Hotwork that the e-mail did not deserve privilege protection. This meant that Hotwork’s production of the e-mail did not cause a waiver, and thus did not trigger a subject matter waiver.
If a company has voluntarily (or even inadvertently) produced an arguably privileged document, it might behoove the company to argue that the document did not deserve privilege protection — abandoning any fight over that particular document might prevent a much more damaging subject matter waiver.