Starting about 50 years ago in the case of Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), some courts recognized a broad “at issue” waiver that could strip away privilege without the holder’s disclosure of or even reference to privileged communications. For instance, a 2020 Privilege Point described a case in which the S.D.N.Y. found that FLSA defendant Barnes & Noble triggered an “at issue” waiver by asserting a “good faith defense” to its job classifications – “even when [it] asserted that it was not relying on advice of counsel.” Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 652-53 (S.D.N.Y. 2019).
Other courts have not gone that far, finding such a waiver only when a litigant “attempts to prove [its] claim or defense by disclosing or describing an attorney client communication.” Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994). In Linet-Americas, Inc. v. Hill-Rom Holdings, Inc., — F. Supp. 3d —, 2024 U.S. Dist. LEXIS 123910, at *4 (N.D. Ill. July 15, 2024), the court continued what seems to be the trend toward this narrow view – rejecting defendant’s contention “that an implied waiver should be found where fairness requires an opposing party to be able to consider privileged communications to resolve a privilege holders, claim or defense.”
Because corporate defendants most commonly face the danger of a broad “at issue” waiver, they and their lawyers should keep their fingers crossed that this narrowing trend continues.
