Sometimes a party has to decide whether to give privileged information to its adversary. The benefit is the potential to use it at trial; the risk is the possibility of waiving other privileged information on the same subject matter. For disclosures made in a federal proceeding, Rule 502(a) of the Federal Rules of Evidence governs subject matter waiver. This article summarizes the rule and provides five recent examples of how courts have applied it.
Rule 502 was enacted in 2008. It abolished the old rule that any disclosure of privileged material—voluntary or not—constituted a waiver of privilege on other information concerning the same subject matter(Trs. of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc.). Under 502(a), subject matter waiver occurs only if the following three elements are satisfied:
- The waiver was intentional
- The disclosed and undisclosed information concern the same subject matter
- The disclosed and undisclosed information ought in fairness to be considered together
The rule thus limits subject matter waiver to intentional disclosures, but prevents a party from using privilege as both a sword and a shield. Although each waiver determination is unique, the following are five warnings about subject matter waiver—drawn from a sampling of recent cases—that may be helpful in deciding whether and how to disclose certain privileged information.
1. Production of the final draft of a privileged document may waive privileges on prior drafts and related correspondence. A defendant in Ohio produced a final audit report during discovery and unsuccessfully claimed privilege on the draft reports and related emails. The court rejected the argument that privileges on the draft reports and emails should not be waived because they included “confidential draft conclusions, impressions, and assessments” to outside counsel. (Graff v. Haverhill North Coke Co)
2. An attempt to unilaterally limit the scope of the waiver may not be effective. In a recent California case, a lawyer at a deposition gave the other side a privileged document concerning a weather investigation. The lawyer stated that production of the document did not waive any privilege on other conversations referenced in or about the document. The court, however, found that the privilege was waived as to all other communication and information concerning the investigation. (Century Aluminum Co. v. AGCS Marine Ins)
3. Privileged information generated in different years may still concern the same subject matter. Lawyers in an Alabama case lost the argument that disclosure of privileged communications about transactions in 2007 should not waive privileges on communications in 2008 about correcting those transactions. (San Francisco Residence Club, Inc. v. Baswell-Guthrie)
4. Production of a privileged witness interview summary may waive the privilege on other witness interview summaries even though the interviews concerned different topics. A district court in Illinois ruled that production of one summary waived the privilege on all summaries related to the same investigation. (Lerman v. Turner)
5. An affidavit from a general counsel/vice president concerning a company’s voluntary payment of health benefits may waive privileges as to all information concerning that opinion. The party argued that the waiver should be limited to the affidavit, but the district court in Michigan required production of all documents about the opinion and allowed the other side to re-depose the witness since privilege was claimed in the first deposition. (Witmer v. Acument Global Tech., Inc.)