When negotiating their respective privilege claims, litigants sometimes face the temptation to agree among themselves that producing some arguably protected withheld documents will not trigger a subject matter waiver requiring them to produce additional withheld documents. Is that wise?

Courts generally honor such private agreements. In Butler v. Mueller Cooper Tube Co., the court noted that defendant had "produced over 800 pages of . . . claims file[s]" – "after counsel agreed that such disclosure would not waive all claims of privilege." Civ. A. No. 1:17CV-19-DAS, 2018 U.S. Dist. LEXIS 61424, at *2 (N.D. Miss. Apr. 11, 2018). The court rejected plaintiffs' later waiver argument, explaining that "[w]hile selective production of documents or privilege information can result in a waiver of the privilege . . . , the court sees no compelling reason to excuse the plaintiffs from the agreement they made with defense counsel." Id. at *6.

In one-off commercial litigation where there are no other adversaries or would-be adversaries, such private non-waiver agreements might make sense. But in pattern litigation or other situations where there are existing or possible future adversaries, such private agreements are too risky. They only bind signatories, and do not prevent third parties from claiming a subject matter waiver. In those circumstances, the only safe bet is to incorporate such agreements into court orders.