Because the voluntary disclosure of a privileged communication can trigger a subject matter waiver, some situations involve a bizarre reversal of positions. In those cases, the producing party claims that a document it disclosed did not deserve privilege protection (and therefore the disclosure did not trigger a waiver or a subject matter waiver), while the receiving party argues that the disclosed document was privileged.
The court in Intervet, Inc. v. Merial Ltd., 252 F.R.D. 47 (D.D.C. 2008), dealt with such a situation. Merial claimed that Intervet had produced a privileged document. Intervet denied that the document deserved privilege protection, but out of an abundance of caution asked Merial to destroy the document. Merial complied, but then argued that Intervet had triggered a subject matter waiver. The court used the “curio[u]ser and curio[u]ser” quotation from Alice in Wonderland in describing the scenario. Id. at 52. The court ultimately rejected what it called Merial’s “gotcha” position. Id. at 53. The court explained that “I cannot possibly find that such a broad [subject] waiver is a legitimate judicial response” to Intervet’s production of an arguably privileged document. Id.
Washington, D.C., is one of the few jurisdictions in which even an inadvertent disclosure of a privileged document can trigger a subject matter waiver, and it is refreshing to see that some D.C. courts take a realistic attitude toward the waiver issue.