Decision Highlights the Importance of Clearly Articulating Any Deposition “Limited Waiver” Deal

July 18, 2007

When deposition questions arguably seek privileged communications, the lawyers taking and defending the deposition sometimes make a quick arrangement under which the witness answers the questions — but with the understanding that the answers will trigger only a limited subject matter waiver. Although such arrangements generally do not bind third parties (and therefore should rarely if ever be used if there are others who might be interested in the communications), these arrangements frequently make sense in commercial cases or other one-off litigation.

However, lawyers negotiating such arrangements must carefully articulate the scope of the subject matter waiver. In JPMorgan Chase & Co. v. Pierce, No. 05-CV-74455-DT, 2007 U.S. Dist. LEXIS 25841, at *7 (E.D. Mich. Apr. 4, 2007) (citation omitted), lawyers representing plaintiff JPMorgan Chase and defendant (a former JPMorgan Chase executive) agreed that the defendant could answer certain questions, as long as the waiver extended only to discussions with a third party “‘on this particular subject.'” Unfortunately, the parties later disputed the meaning of the term “this particular subject.” In a hearing on the waiver’s scope, the court explained that “resolution of this issue is a close question,” but generally agreed with the defendant’s view of the waiver triggered by the testimony. Id. at *22.

Lawyers negotiating any type of limited-waiver deal during a deposition should very carefully articulate the scope of the waiver.