Disputes About Privilege Waiver Often Focus on the Subject Matter Waiver Doctrine

August 17, 2011

While waiving the attorney-client privilege usually triggers ill effects, those can be enormously magnified by the subject matter waiver doctrine. Under that doctrine, the intentional disclosure of privileged communications in certain circumstances can result in a waiver that requires the additional disclosure of all other communications on the same subject matter. This dramatic consequence can arise only upon disclosure of privileged communications.

In the long-running litigation against Chevron brought by Ecuadorian plaintiffs alleging contamination of that South American country, Chevron had convinced the Eastern District of Pennsylvania that the plaintiffs had waived their attorney-client privilege protection by allowing a film crew to document some of their otherwise privileged discussions. The lower court also found that the “presence of strangers” during the privileged meetings triggered a subject matter waiver. The Third Circuit reversed. In Pallares v. Kohn (In re Chevron Corp.), Nos. 10-4699 & 11-1099, 2011 U.S. App. LEXIS 10510, at *6 (3d Cir. May 25, 2011), the court noted that the privilege never applied to the meetings recorded by the film crew, “due to the presence of the filmmakers at the time of the communications.” Based on this finding, the Third Circuit concluded that “the public disclosure of non-privileged communications does not lead to a subject matter waiver of the attorney-client privilege for communications covered by the privilege.” Id.

Although the Third Circuit did not address it, a subject matter waiver probably would have occurred had the plaintiffs shared pre-existing privileged communications with the filmmakers. Ironically, the plaintiffs avoided a damaging subject matter waiver by instead allowing the filmmakers to listen in on the communications as they occurred, thus aborting the privilege and preventing a subject matter waiver.