Major Decision on Subject Matter Waiver Doctrine 3

In a major decision concerning privilege waiver, the Illinois Supreme Court, in Center Partners, LTD v. Growth Head GP, LLC, ruled that the subject matter waiver doctrine does not apply to privileged communications disclosed in an extrajudicial context.  The Court’s decision, which can be accessed here, answered a question of first impression in Illinois and will serve as influential authority when other states consider the scope of subject matter waiver.

Question at Issue

The precise question before the Court was whether, as a matter of law, the subject matter waiver doctrine applies to the disclosure of privileged information made outside of a litigation or judicial setting (an extrajudicial setting).

Illinois Supreme Court

Illinois Supreme Court

Where a privileged communication is voluntarily disclosed, the subject matter waiver doctrine extends this waiver to all other communications pertaining to the same subject matter.  The purpose of the doctrine is to prevent a party from selectively disclosing favorable information while simultaneously withholding unfavorable information under the cloak of privilege. The question in Center Partners was whether the subject matter doctrine, and its underlying purpose, should apply in non-litigation contexts.

Facts of Case

The Center Partners case involved a complicated business transaction.  In short, three companies negotiated the purchase of  Rodamco North America, N.V., including the General Partner of one of Rodamco’s holdings.  During the purchase negotiations, the purchasing entities and their lawyers exchanged privileged information concerning the legal implications of the transaction, rights and obligations of the parties to the transaction, and legal concerns and conclusions about the structure of a new partnership agreement.  A couple of years after the transaction was complete, a group of minority limited partners sued for breach of contractual and fiduciary duties, and sought all communications actually disclosed between the purchasing entities and all privileged, non-disclosed communications concerning the same subject matter.

Court’s Ruling

In an issue of first impression in Illinois, the Court ruled that the subject matter waiver doctrine does not apply where privileged communications are disclosed in an extrajudicial setting. The Court based its decision in large part on the doctrine’s underlying purpose.  The purpose is to prevent a party from using an evidentiary privilege offensively (sword) to disclose favorable information and later defensively (shield) to withold unfavorable information pertaining to the same subject matter.

The Court reasonsed that, outside the litigation context, parties generally do not decide to disclose privileged information for sword and shield purposes.  In many non-litigation settings, such as business transactions, parties disclose privileged information before litigation is initiated or even contemplated.  And expanding the subject matter waiver doctrine to non-litigation contexts would produce a perverse result: parties may “leave attorneys out of commercial negotiations for fear that their inclusion would later force wholesale disclosure of confidential information.” Consequently, the Court found that the purpose of the subject matter waiver doctrine is simply not served by expanding it to non-litigation contexts.

The Court placed one limitation on its ruling.  It stated that, if a disclosure is made during a business negotiation to gain a later tactical advantage in anticipated litigation, then the subject matter waiver doctrine would still apply if such a disclosure is later used by the disclosing party at any point during the litigation to gain a tactical advantage.

PoP Analysis

Most states have not addressed the issue whether the subject matter waiver doctrine applies in extrajudicial contexts, and this area of evidentiary privileges needs more development.  The Illinois Supreme Court’s decision in Center Partners is based on sound reasoning and will likely serve as persuasive authority when the issue arises in other states.  And while the decision was made in the non-litigation context of business transactions, it will likely serve as persuasive authority for disclosures made in other non-litigation contexts such as disclosures made during settlement negotiations, government investigations, regulatory compliance filings, or for public relations/media purposes.  For a more detailed analysis of these issues, see an earlier PoP post recommending an IADC article by Andrew Kopon and M.C. Sungaila.

Massachusetts Adopts Judicial Deliberative Privilege. Which State is Next? 2

The Supreme Judicial Court of Massachusetts recently ruled what many lawyers and judges assume—that a judicial deliberative privilege exists and protects from compelled disclosure a judge’s deliberative processes and related communications.  With a dearth of federal and state law on the issue, this case may serve as a catalyst for other states to recognize the privilege either through common law or legislative development.  See In the Matter of Enforcement of a Subpoena, 972 N.E.2d 1022 (Mass. 2012).


Suffolk County District Attorney Daniel F. Conley, the chief law enforcement officer for Boston, filed a complaint with the Massachusetts Commission on Judicial Conduct alleging that a Boston Municipal Judge had repeatedly shown bias against the Commonwealth.  The Boston Globe later published articles and editorials about the so-called “let me go” judge and the investigation into his allegedly lenient rulings in criminal proceedings.  As part of the Commission’s investigation, the judge was subpoenaed to a deposition and requested to bring “any notes, notebooks, bench  books, diaries, memoranda, recordation or other written recollections of cases” described in DA Conley’s Complaint. Conley conceded that he sought information regarding the judge’s processes, methodology, and conduct in adjudicating cases before him because it is notoriously elusive and difficult to prove bias.  The judge objected, arguing that a judicial deliberative privilege protects the judge’s deliberative information from compelled disclosure.  No previous Massachusetts court had ruled on the privilege’s existence.


The Supreme Judicial Court formally recognized a judicial deliberative privilege that guards against intrusions into a judge’s deliberative processes.  Although no express Massachusetts authority supported the privilege, the Court ruled that the privilege is deeply rooted in Massachusetts common law and constitutional jurisprudence and in the precedents of the U.S. Supreme Court and the courts of its sister States. In fact, no court to consider a judicial deliberative privilege has rejected it.

The Court ruled that the judicial deliberative privilege is necessary to ensure the finality of judgments, to protect the quality and integrity of judicial decision-making, and to ensure an independent and impartial judiciary.

The judicial deliberative privilege covers a judge’s mental impressions and thought processes in reaching a judicial decision, and protects confidential communications among judges and between judges and their law clerks and other court staff made in the course of and related to their deliberative processes in particular cases.

The privilege does not cover a judge’s memory of nondeliberative events in connection with a particular case, inquiries into whether a judge was subjected to extraneous influences or ex parte communications, or when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.

Massachusetts Privilege Differs with Federal Common Law

The Massachusetts court departed from federal common law by ruling that the judicial deliberative privilege is absolute, meaning that a party may not overcome the privilege upon a sufficient showing of need.  The 11th Circuit Court of Appeals has ruled that the federal privilege is qualified and will give way when party seeking the information meets his burden of showing that the importance of the information, its relevance to the particular proceeding, and a difficulty in obtaining the information through alternative means.  Upon this showing, the court must balance the party’s need for the information against the degree of intrusion upon the confidentiality of the privileged communications. See Williams v. Mercer, 783 F.2d 1488, 1521–22 (CTA7 1983).

Other States

Massachusetts now joins Illinois, West Virginia, and Pennsylvania in recognizing a judicial deliberative privilege.  See Thomas v. Page, 837 N.E.2d 483 (Ill. App. Ct. 2005); Kaufman v. Zakaib, 535 S.E.2d 727 (W. Va. 2000); and Leber v. Stretton, 928 A.2d 262 (Pa. Super. 2007).  And a Connecticut Court of Appeals recently upheld, without elaboration but citing the Massachusetts’ opinion, a trial court’s refusal to allow a judge to be cross-examined about this decision-making process.  See Kosiorek v. Smigelski, 138 Conn. App. 695, 2012 WL 4872756 (Conn. Ct. App. Oct. 23, 2012).

As Rocky Marciano Reminds Us–The Government-Informant Privilege Applies in Civil Actions

What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.

The Government-Informant Privilege

The government-informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.

There is no fixed rule on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole discretion to determine whether the evidence justifies disclosure.  The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history.  For a replay of the famous punch, check out this Youtube video.

The Scandal

While most remember Marciano’s famous knockout punch, a scandal involving Jersey Joe Walcott’s manager developed followingthe fight.  In a 1956 article titled “Dirty Work at Ringside” and published in the Saturday Evening Post, Marciano claimed that Walcott’s manager, Felix Bocchicchio, rubbed capsicum Vaseline on Walcott’s boxing gloves and upper part of his body.  And with every punch landed by Walcott and whenever Marciano’s face contacted Walcott’s upper body, the capsicum Vaseline would get into his eyes.  Marciano described his predicament this way:

I’m sure Jersey Joe had nothing to do with this. He was a hellava fighter that night, even without the extra help.  But by the end of the sixth round my eyes were burning.  They burnt so bad during the seventh and eighth roundss I could hardly hold them open.  To see Walcott, I had to lift my head to look out at him from under my lids.  That way I had to hold up my chin in the air.  That way I was a real easy target.

Almost a year later, a Philadelphia policeman told Marciano that a police informant told him that Walcott’s manager, Bocchicchio, obtained the capsicum Vaseline and intentionally rubbed the medicine on Walcott’s gloves and upper body.  The article contained this damning quote:

Somehow or other, this capsicum got to Bocchicchio, and I don’t know why that should be so complicated, because anybody can buy the stuff in a drugstore.  But my informant was afraid for his life if he told how it got to Bocchicchio.  Well, in the ring it was rubbed on Walcott’s gloves and shoulders, and whenever you’d go into a clinch with him or whenever he jabbed you, it would rub off into your eyes.

The Lawsuit and the Government-Informant Privilege

Bocchicchio was not pleased with the article, and filed a libel action against Curtis Publishing Company, the publisher of the Saturday Evening Post.  Bocchicchio’s counsel called the policeman to testify and

October 6, 1956 Saturday Evening Post issue containing Marciano’s capsicum vaseline claims

asked the informer’s name.  The policeman refused, citing the government-informant privilege.  The Court agreed and did not force the policeman to reveal his informer’s identity.  The Court recognized that the privilege is most often applied in criminal cases, but that it applies in civil cases as well. The Court noted that the privilege recognizes citizens’ obligations to communicate their knowledge of violations of law to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.  Not only did the Court apply the privilege in this civil action, it noted that “The Federal Courts have consistently indicated that the strength of this privilege is greater in civil cases such as this than in criminal cases.”  See Bocchicchio v. Curtis Publishing Co., 203 F. Supp. 403 (E.D. Pa. 1962).

The jury returned a defense verdict and Bocchicchio’s libel action was dismissed. By this time (1962), Marciano had defeated Jersey Joe Walcott a second time and retired as the only undefeated heavyweight boxing champion.  And one of the lasting legacies of the famous 1952 bout is the solidification that the government-informant privilege not only applies in civil actions, but does so with greater strength than in criminal cases.