Does a Litigant Waive any Protection by Seeking Recovery of Attorney’s Fees?

March 17, 2010

Last week’s Privilege Point dealt with an “at issue” waiver, which can occur without disclosure of, or even mention of, privileged communications. Another form of implied waiver can occur when the litigant relies upon – but does not disclose – protected communications.

In Pillsbury Winthrop Shaw Pittman LLP v. Brown Sims, P.C., Civ. No. 4:09-mc-365, 2010 U.S. Dist. LEXIS 715 (S.D. Tex. Jan. 6, 2010), the law firm of Pillsbury Winthrop sued its clients’ insurance company (INA) for reimbursement of over $1,500,000 of attorney’s fees. Pillsbury Winthrop had incurred the fees in defending its clients during litigation involving damage caused by Hurricane Wilma. Pillsbury Winthrop produced redacted bills to support its claim, but INA moved to compel production of unredacted bills. The court granted that motion, ordering Pillsbury Winthrop to “turn over unredacted bills for every dollar” that the firm claimed. Id. at *30 n.55. INA also moved to compel production of all of the firm’s supporting documentation, to explore whether the firm reasonably incurred the expenses for which it sought reimbursement. The court allowed “partial redaction” of such documentation, but warned Pillsbury Winthrop that “the more the documents are redacted, the greater the risk [the firm] runs of creating doubts as to whether those documents support the billing statements.” Id. at *37-38.

Litigants seeking recovery of attorney’s fees under a statutory or contractual fee-shifting provision should remember that relying on privileged communications in this way might trigger an implied waiver.