The subject matter waiver doctrine associated with evidentiary privileges, most notably the attorney-client privilege, is relatively underdeveloped yet has frightening consequences. And while some courts have considered the subject matter waiver doctrine in the context of disclosures during civil litigation, even fewer have addressed waiver where disclosures occurred outside the litigation context.
For example, it is common for clients and lawyers to disclose some privileged information during negotiations in business transactions. If subsequent litigation ensues over the transaction the question becomes whether those limited pre-litigation disclosures result in waiver of the privilege with respect to all documents concerning the same subject matter.
In their article, The Perils of Oversharing: Can the Attorney-Client Privilege be Broadly Waived by Partially Disclosing Attorney Communications During Negotiations?, 79 Def. Counsel J. 265 (July 2012), lawyers Andrew Kopon, Jr. of Kopon Airdo, LLC in Chicago, and Mary-Christine Sungaila of Snell & Wilmer in Orange County, provide a comprehensive analysis of the scope of the subject matter waiver doctrine.
The article discusses how courts have handled subject matter waiver in settings outside the litigation context, such as settlement negotiations, public or media disclosures, grand jury investigations, patent disputes, SEC filings, and general business transactions. And, using the pending Illinois Supreme Court case of Center Partners, Ltd. v. Growth Head GP, LLC, (the intermediate appellate court’s decision published at 957 N.E.2d 496 (Ill. App. Ct. 2011)), the article highlights how the Court’s upcoming decision may shape the subject matter waiver discussion in this underdeveloped yet important area.
The article may be found here. My thanks to Mr. Kopon and Ms. Sungaila, and the well-respected International Association of Defense Counsel (IADC), for permitting access to the article through this post.