Many commentators have written, with some alarm, about the gradual erosion of the attorney-client and work product privileges, particularly in the corporate context.
For example, disputes concerning inadvertent waiver of the privilege through the unintentional disclosure of privileged information have exploded in the age of electronic discovery. The federal government incentivizes "cooperation" that entails waiver of the privilege by using such cooperation as a key factor in determining whether to indict or offer sentencing credits to it. The crime-fraud exception to the privilege, particularly in the wake of recent corporate scandals, has been invoked with considerable and increasing frequency.
Concerns over the growing application of the "at-issue" privilege waiver, which is a form of implied waiver of the attorney-client and work product privileges, tend to receive less attention, likely because the waiver is regarded as one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. "[I]mplied waiver [of the attorney-client privilege] may be found where the privilege holder 'assert[s] a claim that in fairness requires examination of protected communications."
But just what constitutes "fairness?" Under the at-issue waiver doctrine, fairness requires a finding of waiver of privilege "where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of the party's claim or defense, and application of the privilege would deprive the opposing party of vital information."
Courts have failed to consistently consider those key aspects that, in the privilege waiver context, comprise "fairness," i.e., disclosure of privileged material dictated by the absolute necessity of discovery of vital information. Instead, many courts have ended their inquiry by determining that the discovery sought is merely "relevant." The Appellate Division's recent decision in Veras Investment Partners v. Akin Gump Strauss Hauer & Feld LLP, imposes upon New York courts the obligation of engaging in a more rigorous, fact-sensitive analysis.
For a full treatment of this topic, view Chris Karagheuzoff and Deirdre Sheridan's article, "Defending Against 'At-Issue' Privilege Waiver," originally appearing in the New York Law Journal (October 24, 2008, used with permission). A PDF of the article can be accessed here.