Texas Federal Court Applies the “At Issue” Waiver Doctrine

July 19, 2023

Clients can waive their privilege protection by intentionally or accidentally disclosing privileged communications, or by explicitly relying on privileged communications (such as pleading “advice of counsel” as a defense). They can also waive their privilege protection without disclosure and without such explicit references.

In Smith v. MV Transportation, Inc., Civ. No. 1:21-CV-349-DII-SH, 2023 U.S. Dist. LEXIS 84747 (W.D. Tex. May 15, 2023), defendant sought to enforce an FLSA settlement agreement. Plaintiff resisted defendant’s effort, contending that he had not authorized his lawyer to settle on those terms. The court understandably held that by challenging the agreement and by “asserting that [his lawyer] lacked authority to settle the case, [plaintiff] puts his communications with [his lawyer] about the settlement at issue and thereby waived his right to assert privilege over those communications.” Id. at *9 (emphasis omitted). As with all waivers, the court then had to assess the waiver’s scope. The court wisely held that the “temporal scope of a waiver generally is limited to the period when the disclosing party placed the privileged material at issue” – and thus did not extend to plaintiff’s replacement lawyer. Id. at *12.

These so-called “at issue” waivers are the most frightening, because they can apply without disclosure of, or explicit reliance on, privileged communications. Clients triggering such a waiver must then hope that the waiver’s scope will be limited, to minimize any damage.