Disclosing privileged or work product-protected communications to a third party can risk a waiver of those communications’ protections. In some circumstances, such a disclosure can trigger a more frightening subject matter waiver, requiring disclosure of additional communications. One recent defendant avoided the latter danger but missed the chance to avoid the former.
In Text My Gov, Inc. v. UpAhead, LLC, Case No. 1:24-cv-00107, 2025 U.S. Dist. LEXIS 199152 (D. Utah Oct. 7, 2025), plaintiffs claimed that defendants obtained trade secrets from one of plaintiffs’ former employees and used the information to establish a competing business. Plaintiffs’ forensic examination of one defendant’s phone showed a text to his father containing defendants’ lawyer’s “legal advice regarding this litigation.” Id. at *3. Plaintiffs argued that the defendant’s text to his father triggered a subject matter waiver, requiring production of “all attorney-client communications about liability and damages in this case.” Id.
The court correctly rejected plaintiffs’ subject matter waiver argument, noting that there was “no indication [that the defendant who texted his father] intended to use [the text] in this litigation.” Id. at *13-14. If defendant’s lawyers were readers of Privilege Points, presumably they would have known to additionally (and successfully) argue that “legal advice regarding this litigation” also deserved robust work product protection — which would not have been waived by disclosure to a relative, eliminating risk of a subject matter waiver and, perhaps, even supporting a clawback effort.