Drawing the Line Between Waiver and Non-Waiver: Part I

August 9, 2017

Clients describing their past or intended future actions obviously do not waive their privilege protection – even if the clients are following their lawyers’ advice.  But clients voluntarily disclosing privileged communications nearly always waive their privilege protection, and can trigger a subject matter waiver.  It can be easy to cross that tenuous line.

In Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, defendant business executive sent an email to a third party investor with the following sentence:  “I was about to write, to you this email last Friday but I decided to []wait until we all sit down with attorneys this morning.  It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise.”  No. 650868/2015, 2017 NY Slip Op. 31216 (U) at 3 (N.Y. Sup. Ct. June 5, 2017) (emphasis added).  The court concluded that defendant’s email “provided a detailed description of specific legal advice and the course of action given to him by his attorneys.”  Id. at 4.  Contrary to most case law, the court found a subject matter waiver – and “directed [defendants] to produce any communications and documents ‘pertaining to the subject matter of the email.'”  Id. (citation omitted).

Defendant presumably would not have waived privilege protection or risked a subject matter waiver if his email had not included the three words “by legal counsels.”  The fact that defendant met with his lawyers did not deserve privilege protection, and his intended course of action following the meeting likewise did not deserve privilege protection.  Clients can describe their intended actions, but should never attribute those to lawyers’ advice.  Next week’s Privilege Point will discuss a similar decision from another court about two weeks later.  The Privilege Point after that will discuss the subject matter waiver implications of the decisions described here and in the next Privilege Point.