In many, if not most, cases, a litigant producing documents aggressively claims privilege protection, presumably figuring that “there’s no harm in asking.” But sometimes there is.
In Berkovec v. Blue Matrix I, LLC, Index No. 652203/2024, 2025 NY Slip Op 34667(U), 2025 N.Y. Misc. LEXIS 9957 (N.Y. Sup. Ct. Dec. 9, 2025), plaintiff claimed that his former employer miscalculated an employee benefit. Plaintiff argued that defendant triggered a subject matter waiver by “selectively” producing some privileged documents while withholding others. N.Y. Misc. LEXIS 9957, at *5. But plaintiff also “argued strenuously that the now-produced documents were not in fact privileged.” Id. “Defendant’s decision effectively to concede the point as to those documents” doomed plaintiff’s subject matter waiver argument. Id. at *5-6.
Plaintiff’s presumably knee-jerk challenge to defendant’s original privilege claim overlooked the impact on his subject matter waiver argument, forgetting that “selective disclosure can result in a [subject matter] waiver, [but] it applies only where both the disclosed and withheld materials are privileged.” Id. at *5.
