Unlike an intentional or unintentional express waiver involving actual disclosure of a privileged communication, a litigant can trigger an implied waiver by relying on the fact of such a privileged communication rather than its content. For instance, a party seeking some litigation advantage by relying on “advice of counsel” obviously cannot withhold that advice or the facts that prompted the lawyer’s advice.
Some opinions take a very broad view of such implied waivers. In Wesco Aircraft Holdings, Inc. v. SSD Investments Ltd. (In re Wesco Aircraft Holdings, Inc.), a witness asserting a “good faith defense” for his employer’s challenged conduct testified that he formed his own ‘commercial understanding’ ” about a key document’s meaning — but admitted during his testimony that he then “confirmed that understanding through advice of counsel [at Latham & Watkins].” Ch. 11 Case No. 23-90611, Adv. No. 23-3091, 2024 Bankr. LEXIS 960, at *22-23 (Bankr. S.D. Tex. Apr. 22, 2024), vacated on reconsideration, 2024 Bankr. LEXIS 1146 (Bankr. S.D. Tex. May 14, 2024). The witness’s employer argued that the witness should be allowed to testify just about his own “commercial understanding,” but the court somewhat surprisingly “required [him] to produce copies of all written communications from counsel” — because “the only way to separate [the witness]’s commercial understanding of [the key document] and the legal advice [the witness] received is to understand what the legal advice was.” 2024 Bankr. LEXIS 960, at *30-31 & *29.
As hard as it can be to assess privilege waiver and scope issues involved in an express waiver, it is far more difficult to analyze the impact of an implied waiver. In this case the judge had second thoughts, described in next week’s Privilege Point.