Opinion Highlights the Risk of Rogue Constituents’ Privilege Waiver

August 26, 2020

Many courts have dealt with corporate and other organizational entities’ constituents’ ability to waive those entities’ privilege protection. In the corporate context, most courts hold that any constituent (even middle management, etc.) trusted to handle privileged communications can waive the corporation’s privilege — if she acted in the corporation’s interest rather than adverse to its interest.

In Gibson-Carter v. Rape Crisis Center, No. 4:19-cv-122, 2020 U.S. Dist. LEXIS 94424 (S.D. Ga. May 29, 2020), defendant RCC argued that its board member was not authorized to waive RCC’s privilege by disclosing an investigation report to the plaintiff suing the RCC. The court rejected RCC’s argument that a single Board member could not waive RCC’s privilege – pointing to a Georgia statute indicating that Georgia non-profit corporations’ board members have authority to act on those corporations’ behalf. The court bluntly stated that “the Georgia statute lack[s] any restrictions on an individual board member’s authority to act unilaterally.” Id. at *36.

This conclusion rested on statutory authority. But there is a troubling possibility that a rogue member of a corporate board, a board of supervisors, etc. could unilaterally waive those entities’ privilege protection. Courts probably would find no waiver if such individuals selfishly acted in their own personal interest (like a disloyal employee), but might conclude otherwise if those individuals were acting in what they thought was the entities’ interest or even the public interest. That does not make much sense.