Many lawyers fear that disclosing attorney-client privileged communications might trigger a subject matter waiver – requiring disclosure of additional related privileged communications. Fortunately, that risk has diminished through common law developments and Federal Rule of Evidence 502. The former generally limits subject matter waiver to disclosures in a judicial setting, and the latter similarly limits subject matter waiver to the intentional use of privileged communications in litigation to paint a misleading picture.
The subject matter waiver doctrine has always applied differently in the work product context. Litigants prepare much of their work product intending to ultimately disclose it in discovery or at trial. Such disclosures obviously do not trigger a subject matter waiver requiring additional disclosures. In Doe v. Baylor University, the court adopted the majority view that “[w]aiver is more narrow in the context of work product than in the context of attorney-client privilege.” No. 6:16-CV-173-RP, 6:17-CV-228-RP, 6:17-CV-236-RP, 2019 U.S. Dist. LEXIS 99362, at *34 (W.D. Tex. June 7, 2019). The court wisely explained that “[d]isclosure typically only waives work product protection with respect to any document actually disclosed” and that “[s]ubject matter waiver is generally limited to instances where the quality and substance of an attorney’s work product have been directly placed at issue in the litigation by the party asserting the privilege.” Id. at *35-36.
Litigants normally should not worry about subject matter waiver risks when disclosing work product, in contrast to the diminishing but still frightening aspect of subject matter waiver in the attorney-client privilege context.