Can a Party Avoid Waiving the Privilege by Disclaiming an Intent to Waive?

August 3, 2011

In nearly every situation, disclosure of privileged communications to a third party waives the privilege. Every court agrees that such a waiver can occur even if the privilege’s owner does not intend to waive the privilege, or does not appreciate that the disclosure might have that effect.

In Curto v. Medical World Communications, Inc., No. 03 CV 6327 (DRH) (ETB), 2011 U.S. Dist. LEXIS 53228 (E.D.N.Y. May 11, 2011), plaintiff attached copies of privileged documents to court pleadings, and also served them on defendants. When defendants argued that the plaintiff had waived the attorney-client privilege, plaintiff pointed to a disclaimer accompanying the filing, which stated that “‘Plaintiff specifically reserves and does not waive the privilege or immunity from disclosure that attaches to the documents included.'” Id. at *8 (internal citation omitted). The court found the disclaimer ineffective, noting that plaintiff had “presented no case law or other legal authority – and the Court’s own research uncovered none – to support” plaintiff’s argument. Id. at *12.

Clients and their lawyers must remember that disclosing privileged communications to any third party normally will trigger a waiver, despite any disclaimers attempting to avoid that adverse effect.