The Southern District of New York Takes a Narrow View of the “At Issue” Waiver Doctrine

May 11, 2016

An “at issue” waiver can occur without the client disclosing, relying on or even referring to privileged communications. Instead, such a waiver can result from the client’s affirmative assertion of some position that necessarily implicates the client’s knowledge — putting the client’s knowledge “at issue” and thus requiring the client to disclose any otherwise privileged communications that contributed to the client’s knowledge.

However, some courts take a very narrow view of such waivers. In 2002 Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., No. 12 Civ. 6808 (KMK)(PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. Mar. 11, 2016), plaintiff sought to rely on Alaska’s discovery rule to avoid a statute of limitations bar. Magistrate Judge Davison correctly recognized that “a key issue is when plaintiff had enough information to alert him that he had a potential cause of action or should begin an inquiry to protect his rights.” Id. at *2-3. Defendant sought communications between plaintiff and his estate planning attorney from the “key November 2008 timeframe.” Id. at *3. Plaintiff withheld three emails from that key time — described on a privilege log as follows: “To litigate or not to litigate, that is the question.” Id. (internal citation omitted). Defendant naturally sought discovery of those documents — undoubtedly intrigued by what Judge Davison called “the provocative Shakespearean” log description. Id. But the court denied defendant’s discovery efforts, explaining that the Second Circuit followed a very narrow “at issue” doctrine approach. Although the court acknowledged that the withheld emails might be relevant, it concluded that “plaintiff’s claim that he was not on notice of actionable conduct by defendant” at the time the emails were written “does not . . . have anything to do with attorney-client communications or legal advice.” Id. at *7.

Other courts adopt a broader “at issue” waiver approach. They understandably conclude that a litigant placing her knowledge (or ignorance) “at issue” as of a certain time to seek some advantage in litigation must disclose all inputs into her brain during that time — including even otherwise privileged communications from a lawyer.