Eighty years after Rhett Butler rejected Scarlett O’Hara’s plea for reconciliation, a court has rejected Scarlett Palm’s plea to drastically alter the concept of at-issue waiver.
We know that, for the most part, a party waives the privilege, such as the attorney–client privilege or psychiatrist–patient privilege, by basing a claim or defense on the privileged subject, like legal advice or one’s mental health. But can a party to a civil lawsuit affirmatively put the opposing party’s privileged subject at issue and then pierce the privilege by claiming at-issue waiver?
Scarlett (of Illinois, not Tara) presented this novel argument, but in an issue of first impression, the Illinois Supreme Court ruled that only the privilege holder—not an adversary—controls when the at-issue waiver doctrine applies. Palm v. Holocker, 2018 IL 123152 (Ill. Feb. 28, 2019). You may read the opinion here. Let’s explore this interesting and little-addressed privilege topic.