The common-law subject-matter waiver doctrine holds that, in certain circumstances, if a party discloses privileged information then it waives the attorney–client privilege as to undisclosed privileged information related to the same subject matter as the disclosed information. The doctrine’s consequences can be severe, as Baylor University and a Chattanooga school board learned when courts forced them to produce documents underlying internal investigations.
Federal Rule of Evidence 502(a) puts some structure around the subject-matter waiver doctrine in certain situations. The rule provides that, when a party discloses privileged information in a federal proceeding or to a federal agency, subject-matter waiver occurs only if (1) the disclosure was voluntary, (2) the undisclosed documents pertain to the same subject matter as the disclosed document, and (3) the disclosed and undisclosed documents “ought in fairness to be considered together.”
The rule is succinct and ostensibly straightforward, but how does it work in practice?
Judge Iain Johnston, always willing to tackle tough privilege issues, as you can see in his opinions on the self-critical analysis privilege and waiver of the psychotherapist–patient privilege for garden-variety emotional-damages claims, provided much-needed clarity on Rule 502’s application in McCullough v. Hanley, 2019 WL 3776962 (NDIL Aug. 12, 2019).
In sum, subject-matter waiver is dependent upon how one uses the disclosed privileged information. You may read the thoughtful opinion here.
Horribly Sad Situation
The Court recounted pieces of this “horribly sad” factual situation. In April 2012, an Illinois jury acquitted Jack D. McCullough, f/k/a John Tessier, of raping his sister decades earlier. But in September 2012, a jury convicted McCullough of the 1957 abduction and murder of 7-year-old Maria Ridulph.
After serving 5 years of a life sentence,