Most privilege and work product waivers involve the intentional or accidental disclosure of protected communications to third parties. But under an “at issue” waiver, a litigant can forfeit both protections without disclosing protected communications.
In Cáceres v. Sidley Austin LLP, Civ. A. No. 1:23-cv-00844-SDG, 2025 U.S. Dist. LEXIS 125839 (N.D. Ga. July 2, 2025), plaintiffs sued law firm Sidley Austin for alleged negligence relating to a 1997 tax opinion letter. They resisted Sidley’s motion to dismiss as time-barred by arguing that they “had exercised reasonable diligence” and did not know they had a claim against Sidley until October 2021 — although they acknowledged that they communicated with another law firm, Smith Gambrell & Russell, about the issue before that time. Id. at *3-4. When plaintiffs resisted Sidley’s attempt to discover those communications, the court ordered plaintiffs to produce their communications with Smith Gambrell and allowed deposition questions of a Smith Gambrell lawyer — both limited to “documents and communications on or before October 2021 that relate to their potential claims against Sidley, the strength of [the 1997] opinion letter, and information that would have put [plaintiffs] on notice of their claims relating to the … transaction.” Id. at *9-10.
The fairness-based “at issue” waiver doctrine can require a litigant that seeks legal advantage by claiming ignorance or knowledge to disclose otherwise privileged communications that could shed light on that ignorance or knowledge.