Does Public Disclosure of Privileged Communications Always Cause a Waiver?

October 12, 2011

Given the fragility of the attorney&-client privilege, one might think that any public disclosure of privileged communications automatically causes a waiver. However, courts unanimously agree that a compelled disclosure does not cause a waiver, and that an inadvertent disclosure does not always cause a waiver under the analysis of Federal Rule of Evidence 502 and its state counterparts.

On an even more basic level, courts also agree that a corporation’s privilege can be waived only by corporate employees authorized to handle the privileged communication. In Hamilton County v., L.P., Case No. 3:11 CV 15, 2011 U.S. Dist. LEXIS 83520 (N.D. Ohio July 29, 2011), the court addressed defendant Expedia’s motion to strike plaintiffs’ reference to certain privileged communications whose production was compelled by a Georgia state court order. Although the privileged Expedia documents had been made available to plaintiffs under a protective order in that Georgia case, a third party had “somehow obtained copies of the subject documents and circulated them among [Florida legislators] and to the media.” Id. at *10. The Northern District of Ohio held that the disclosure was “inappropriate and did not in any way waive the privilege” &-&- because “the involuntary and unauthorized public dissemination of a privileged document or documents . . . does not constitute a waiver of the privilege.” Id. at *10, *11.

Upon reflection, this approach makes great sense. Otherwise, a client’s or even a law firm’s employee could waive the client’s privilege by purloining the documents and putting them on the internet.