“At Issue” Privilege Waiver in Contract Disputes

Attorneys draft contracts.  Contracting parties sue over the contract’s  interpretation.  And when parties litigate the meaning of a contractual provision, it is often the contract-drafting attorney who possesses the insider knowledge of intent and meaning.  The question arises whether the attorney-client privilege protects the contract-drafting attorney’s communications from discovery or whether her client has implicitly waived the privilege.

In his excellent article, Implied Waiver of the Attorney-Client Privilege in Contractual Disputes, available here, Joshua Portnoy discusses situations where courts have ruled that a contracting party waived the attorney-client privilege by putting the contract’s interpretation “at issue” in the lawsuit. Portnoy particularly highlights cases distinguishing ambiguous and unambiguous contracts.

Portnoy also discusses the scope of any implied waiver and whether a party may also discover the contract-drafting attorney’s work product.  The article concludes with takeaways and practice pointers for protecting a party “from unknowingly waiving the attorney-client privilege in a contract dispute or, at least, limiting the potential harm in the event of” privilege waiver.

DRI published the article in the Summer 2015 issue of its fine journal, In-House Defense Quarterly.  My thanks to DRI and Mr. Portnoy for permission to republish the article in this post.