As today's society becomes increasingly litigious, document productions, a major discovery tool, are growing larger. One inevitable consequence of this phenomenon is the increased risk that communications protected by the attorney-client privilege may be inadvertently disclosed. Privileged communications may also be disclosed to an adversary under more questionable circumstances: specifically, the intentional, strategic disclosure of privileged information favorable to the disclosing party's position.
In any case involving the disclosure of privileged information, the court must initially decide whether the privilege is waived. To resolve this threshold issue courts apply one of the three waiver tests. If a court decides that the disclosure waives the attorney-client privilege, then it must address a second, critical issue-the proper scope, or extent, of the waiver. Currently, courts use four standards to determine the appropriate scope of the waiver of the attorney-client privilege. These standards are as follows: (1) the scope of the waiver only extends to the specific document(s) produced; (2) the scope of the waiver encompasses all privileged materials on the same subject matter as the produced documents; (3) the scope of the waiver includes all privileged documents relating to the same subject matter as the produced document(s); and (4) the scope of the waiver requires the production of all other privileged documents on the same general subject matter.
This Article analyzes how courts use these four standards to resolve the scope-of-the-waiver issue and proposes new rules that courts should prospectively apply when selecting the appropriate scope-of-the-waiver standard. Parts II through V of this Article discuss the standards presently in use. This discussion includes a brief description of the scope-of-the-waiver test being assessed, followed by an examination of the factors that are key to the selection of that standard. These considerations include classifying the disclosure as inadvertent or voluntary, determining whether the disclosing party has engaged in selective disclosure, assessing whether the disclosure negatively impacts the integrity of the litigation process, and examining whether the consequences of the disclosure are unfair to the nondisclosing party. This Article also explores the administrative aspects of each standard and highlights the inherent administrative burdens experienced by courts in implementing some of the standards. The Article then assesses each standard by focusing on how the standard furthers several important and competing values: protecting the attorney-client privilege; fostering the liberal discovery policy of the Federal Rules of Civil Procedure; ensuring fairness to the litigants; and deterring substandard and spurious behavior by attorneys, as measured by the penalty imposed on the disclosing party through the court's selection of a particular standard. Part VI compares the standards, presents a proposal for a revised approach for courts to use when resolving the scope-of-the-waiver question, and advises attorneys about how to avoid the imposition of the broader scope-of-the-waiver standards. The Conclusion provides a brief summary of the highlights pertaining to the extent of the waiver issue.
Roberta M. Harding, "Show and Tell": An Analysis of the Scope of the Attorney-Client Waiver Standards, 14 Rev. Litig. 367 (1995).