Southern District of New York Emphasizes the Sword-Shield Analogy in Analyzing Subject Matter Waivers

September 16, 2020

As if waiving privilege protection (either intentionally or inadvertently) was not frightening enough, the sinister subject matter waiver doctrine might force disclosure of additional privileged documents on the same topic. At the high-water mark of the subject matter waiver doctrine, some courts even held that inadvertently waiving privilege in a document production triggered a subject matter waiver.

In In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, Civ. A. No. 14 MD 2542 (VSB) (SLC), 2020 U.S. Dist. LEXIS 99206 (S.D.N.Y. June 5, 2020), Magistrate Judge Cave continued the welcoming trend toward limiting subject matter waiver risk. The court dealt with defendant’s argument that plaintiff triggered a subject matter waiver by “producing a partially redacted . . . [e]mail and [because of] the limited deposition testimony of the 30(b)(6) witness.” Id. at *32. The court recited holdings from several earlier cases narrowing the subject matter waiver doctrine: “the subject matter waiver is appropriate only ‘when a party uses an assertion of fact to influence the decisionmaker while denying its adversary access to privileged materials’”; “‘[s]ubject matter waiver is reserved for the rare case where a party either places privileged information affirmatively at issue, or attempts to use privileged information as both a sword and a shield in litigation.’” Id. at *26 (citations omitted). The In re Keurig court rejected defendant’s subject matter waiver argument, noting that it “has not shown that [plaintiff], as yet, intends to rely on the [redacted email] ‘to influence a decision maker.’” Id. at *30 (citation omitted). Continuing its analysis, the court stated that a subject matter waiver “may arise in the future in this litigation, for example, if [plaintiff]’s counsel were to question a witness about the redacted portions of the [arguably privileged email] during in-court testimony or use the [email] in support of summary judgment, but those events have not yet occurred.” Id.

This increasingly common and appropriate approach should comfort lawyers agonizing over producing arguably privileged emails, and (perhaps more importantly) lawyers whose deposition witnesses blurt out some privileged communication during a deposition. Disclaiming any intent to rely on those “to influence a decision maker” should eliminate a subject matter waiver risk.