Once a feared effect of disclosing privileged communications (sometimes even inadvertently), subject matter waivers now occur in most courts only when a litigant attempts to gain some advantage in litigation by affirmatively using privileged communications. Surprisingly few courts deal with the scope of waiver in those limited circumstances.
In Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016), plaintiff claimed that her employer terminated her upon learning on December 3, 2009, that she was pregnant. The company produced and intended to rely on two admittedly privileged communications between the company and its outside counsel Fox Rothschild to prove that plaintiff actually "'broke the news that she is pregnant'" a week later. Id. at *3 (internal citation omitted). The plaintiff claimed waiver, and sought the production of all emails between the company and Fox Rothschild about her employment. The magistrate judge held that the waiver extended only to communications involving "'the timing of the decision to terminate.'" Id. at *5 (internal citation omitted). The magistrate judge also acknowledged that the defendant had made a supplemental production of additional communications with Fox Rothschild, but that the company stated at the time "its intention to not broaden any waiver of attorney-client privilege." Id. at *9. Although such disclaimers normally do not work, the judge concluded that the supplemental production was made "'as a response to Plaintiff's request rather than as a proactive attempt to inject the communication into the litigation.'" Id. at *10 (citation omitted). Although the court did not explain this conclusion, presumably the defendant assured the court that it would not use any documents from the supplemental production to advance its positions.
Although the previously frightening specter of a subject matter waiver has receded, litigants deliberately disclosing privileged communications must hope that a sophisticated court will limit the waiver to the appropriately narrow subject matter.
