A Compelled Disclosure Normally Does Not Waive Privilege Protection

December 23, 2020

An attorney-client privilege protection owner may waive that protection: (1) expressly, by disclosing privileged communications, or (2) impliedly, by relying on the existence of such privileged communications to gain some advantage. In either situation, the owner normally must voluntarily disclose or rely on the privileged communications to trigger a waiver.

In Newmark Group, Inc. v. Avison Young (Canada) Inc., Case No. 2:15-cv-00531-RFB-EJY, 2020 U.S. Dist. LEXIS 167997 (D. Nev. Sept. 14, 2020), Nevada federal court defendants argued that plaintiffs had waived any privilege protection for communications with their law firm Goodwin Procter by producing them in an earlier Illinois state court proceeding. The court bluntly rejected defendants’ argument — noting that the Illinois court had compelled the production: “It is undisputed that the Illinois court entered this order over Plaintiffs’ objection.” Id. at *30. Thus, plaintiffs’ production of the Goodwin Proctor-related privileged communications in the Illinois case “did not waive Plaintiffs’ right to assert the attorney-client privilege over the same documents (or additional/different documents) before this Court.” Id.

One might wonder why a litigant in a situation like this would bother claiming non-waiver — if the documents had already been disclosed. If successful, such a litigant can: (1) possibly assert privilege under another jurisdiction’s more favorable law; (2) avoid a subject matter waiver; and/or (3) block the admission into evidence of the documents that another court had ordered produced.