Three Subject Matter Waiver Decisions Send Mixed Signals: Part I

February 24, 2021

Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a “sword” while simultaneously asserting the privilege as a “shield” to prevent discovery of related communications. As with many privilege concepts, applying the subject matter waiver doctrine can involve subtle analyses.

In Strand v. USANA Health Sciences, Inc., Case No. 2:17-cv-00925-HCN-JCB, 2020 U.S. Dist. LEXIS 232348, at *4 (D. Utah Dec. 9, 2020), plaintiff intentionally produced privileged documents “disclos[ing] facts that are favorable . . . while redacting facts that may be of value to” defendant. Rejecting plaintiff’s husband’s effort to resist production of the unredacted version of the documents, the court ordered plaintiff to produce all of the pertinent documents in their “unredacted form.” Id. at *7-8.

Some courts might have permitted a litigant to avoid a subject matter waiver by firmly disclaiming any intent to rely on such intentionally produced privileged communications. Because it should be the unfair use of privileged communications as a sword (rather than just their production) that triggers a subject matter waiver, some courts might allow litigants to “put the toothpaste back in the tube.” Next week’s Privilege Point addresses a subject matter decision decided the next day, in a higher stakes context.