Last week’s Privilege Point noted the Southern District of New York’s privilege expert’s opinion confirming the modern view that an extrajudicial disclosure of a privileged communication normally does not trigger a subject matter waiver. UrthTech LLC v. Gojo Indus., Nos. 1:22-CV-6727 (PKC)(KHP) & 1:24-mc-00311 (PKC)(KHP), 2024 U.S. Dist. LEXIS 152798 (S.D.N.Y. Aug. 26, 2024). One day later, the Northern District of Illinois went even further.
In Trydel Research Pty. Ltd. v. ITW Global Tire Repair, Inc., No. 21 C 4977, 2024 U.S. Dist. LEXIS 153502 (N.D. Ill. Aug. 27, 2024), plaintiff pointed to deposition testimony by defendant’s Rule 30(b)(6) corporate designee (its former in-house counsel) in claiming a subject matter waiver — because that disclosure of arguably privileged communications had obviously occurred in the litigation. Magistrate Judge Jeffrey Cole humorously ridiculed the simplistic sword-shield analogy — noting that “[a]nyone who’s watched fencing in the Olympics or in an old swashbuckler film knows that swords are used as shields all the time” and that “you won’t think a shield can’t be used as a weapon if you get conked over the head with one by a Viking or run afoul of Captain America.” Id. at *24-25. The court then bluntly emphasized that to trigger a subject matter waiver a litigant “must make an affirmative attempt to use communications protected by a privilege to influence a decision maker.” Id. at *25 (second emphasis added). The court explained that the lawyer-deponent’s disclosure of privileged communications in his deposition thus did not trigger a subject matter waiver — because that did not automatically mean it would be used before a decision maker. The court stressed that any subject matter waiver discussion or motion was premature — noting that “we are talking about questions and answers at a deposition. The defendant hasn’t affirmatively made use of anything to influence a decision-maker.” Id. at *29.
Most courts similarly follow these two prestigious courts’ approach in finding that a subject matter waiver: (1) will not be triggered by an extrajudicial disclosure of privileged communications, and (2) will not be triggered even by a disclosure in a judicial setting unless the disclosing litigant intends to use or has used privileged communications to influence a decision maker.
