Reprinted with permission from The Brief, Volume 52, Number 3, Spring 2023, at 34–41. ©2023 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Waiving privilege is a worry that can keep litigators up at night. Whatever the privilege might be, waiver can have dire consequences. And in modern litigation, the chances of waiver appear greater than ever, as discovery now encompasses an ever-growing volume of potentially privileged communications due to the proliferation of electronic communications. Ideally, a litigator will take all the right steps to avoid waiver in the first place. But no attorney is perfect, and sometimes mistakes in the form of waivers happen.
This article will focus on the waiver of three common protections: the attorney-client privilege, the work-product doctrine, and the Fifth Amendment privilege in civil proceedings. In addition to reviewing the rules governing waiver of these protections, this article will review some ways to mitigate the damage resulting from waivers.
Start with a Choice-of-Law Analysis
As with many legal questions, the first question for someone facing a waiver (or any privilege) issue should be: What is the governing law? To speak to the broadest possible audience here and operate with a common denominator, let’s assume that we are litigating a diversity case in federal court when the question of waiver arises.
As we recall from law school, the Erie doctrine and the Rules Enabling Act mean that federal law largely applies to questions of procedure and state law largely applies to questions of substance (in diversity cases at least—a federal question case applies federal law both procedurally and substantively).In other words, when state law governs the merits in federal court, then state law also governs related privilege issues. Basically, the law on privilege is considered substantive, not procedural, and so state law should control. Simple enough so far.
But the rules governing waiver of privilege add another layer of complication.(Other types of privilege are outside the scope of Rule 502.) Put another way, think of waiver as a procedural matter, which should be governed by federal law in a diversity case even if the privilege itself is a matter of substantive state law.
Rule 502(b) contains the default test: there is no waiver as long as The burden to prove that the elements of Rule 502(b) have been met—
That is, the court must determine whether there has been a subject matter waiver, The waiver does not extend to undisclosed communications if (1) the waiver was unintentional, (2) the disclosed and undisclosed communications or information concern different subject matter, or As you can see, the test for finding subject matter waiver is significantly more difficult to satisfy than the test for whether waiver of a particular item occurred in the first place.
and the choice-of-law question undergoes yet another twist. The privilege holder benefits from a sort of “rule of lenity” approach: if there would be no waiver under either the applicable state law or under Rule 502(a)–(b)
We will pause here for a moment to note how the choice-of-law analysis for waiver can be hard to track, at least at first. Just remember that the key is to conduct the analysis one step at a time:
- In what court are you litigating (state or federal—and, if the latter, is it a federal question or diversity case)?
- In what court did the alleged waiver occur (the court you are litigating in or another proceeding)?
- Is a party arguing for just waiver of the disclosed communications or a broader waiver (e.g., subject matter waiver)?
Showing “Reasonable” Steps Following Disclosure
As noted above, the language under Federal Rule of Evidence 502(b)(3) states that the party must take “reasonable” steps after inadvertently disclosing privileged information. While the rule does not define what “reasonable” means in this context, courts have provided a list of factors to consider. Those factors includeThis is a nonexhaustive, but quite helpful, list.
Notably, parties can include other factors that contribute to their “reasonable” steps following an inadvertent disclosure. The factors that parties consider important can be expressly addressed via agreement early in a case, which leads us to our next topic.
Contracting Around Federal Rule of Evidence 502(b)
Before Rule 502(b) adopted the compromise position, some courts established a lower threshold for finding waiver (“strict liability” or “strict accountability”), Some state courts might still use one of these “extreme” approaches, so pay attention to your jurisdiction.
In the authors’ experience, and based on a review of the case law, it appears that most (if not all) parties agree to make it more difficult to find waiver, i.e., adopt a more “lenient” approach in favor of protecting privilege and work product. That is accomplished through what is commonly called a “clawback” agreement.
One reason why clawback agreements can modify the default test in Rule 502(b) is that clawback agreements
While parties are free to agree to clawbacks, these contracts—like any other agreement—should be drafted with precision in mind. Otherwise, the clawback agreement might itself lead to further disputes. This would then defeat the purpose of these agreements, which is to clarify and predict what happens in the event of a waiver.
The vague language did not expressly state whether the parties had agreed to eliminate a preproduction review, Because the parties had agreed to exchange privilege logs, the court ultimately inferred that the parties did intend to conduct a This case goes to show that a clawback agreement must be drafted with care to make the parties’ intentions clear. Had the parties expressly eliminated the need for a preproduction review, it seems that the court would have honored that agreement, and the result in the case would have been quite different.
Consider Federal Rule of Civil Procedure 26(b)(5)
We have so far been talking about the Federal Rules of Evidence; we now must turn briefly to the Federal Rules of Civil Procedure to complete the picture. Specifically, Federal Rule of Civil Procedure 26(b)(5)(B) sets forth some basic procedures in a possible waiver situation.The burden then shifts to the recipient to destroy, return, or at least sequester the specified information; avoid using the information until the privilege issue is resolved;
State Counterparts to the Federal Rules
Many states have waiver rules like the three-part test under Federal Rule of Evidence 502(b) and the burden-shifting approach under Federal Rule of Civil Procedure 26(b)(5)(B).
The Florida rule also allows the recipient of the privileged materials to argue waiver based on “[t]he circumstances surrounding the production or disclosure of the materials,”
The Florida rule departs the most from the federal rule in terms of the third element of the test. Whereas Federal Rule of Evidence 502(b)(3) only speaks of “reasonable” steps taken after the inadvertent disclosure, the Florida rule is more specific. It requires the privilege holder to serve a written notice—including certain contents specified by rule—And unlike Federal Rule of Civil Procedure 26(b)(5)(B), the
By way of another example, New York state case law closely mirrors Federal Rule of Evidence 502(b). The three main ingredients—inadvertent waiver plus reasonable steps before and after the disclosure—are present in a long line of cases. One court noted:
Disclosure of a privileged document generally operates as a waiver of the privilege unless it is shown that  the client intended to maintain the confidentiality of the document,  reasonable steps were taken to prevent disclosure,  the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and 
The fourth element of that test goes beyond the text of the federal rule, demonstrating a jurisdictional distinction.
Different jurisdictions have different variations on these rules regarding waiver and clawback. Be sure to check your local rules, especially to avoid blowing any deadlines regarding notice requirements.
How the Work-Product Doctrine Differs
Many jurists—attorneys and judges alike—sometimes conflate the attorney-client privilege and the work-product doctrine. It is important to remember that while these two protections often overlap, they are distinct and must be analyzed separately. Accordingly, a quick primer is in order before delving into the specific waiver issues in the work-product context.
That is, work product is immune from discovery except upon a showing of necessity or good cause. Unlike the attorney-client privilege under Federal Rule of Evidence 501 (which, as noted above, refers substantive issues to state law), the work-product doctrine is always governed by federal law in federal court—even in diversity cases where merits and privilege issues are governed by state law.
Another distinction between the work-product doctrine and the attorney-client privilege is that the doctrine is harder to waive. Disclosure of work product to a third party does not automatically waive the privilege, unless that disclosure substantially increased the opportunities for potential adversaries to obtain the information. Similarly, the common interest doctrine—
Beware of Work-Product and Privilege Waiver in Negotiation Contexts
Granted, some cases limit that type of waiver to the document at issue rather than imposing a broader, Still, it can be surprising that courts find a waiver of otherwise-protected documents in the context of settlement negotiations. Parties should be very careful to expressly invoke any applicable settlement or mediation protections when disclosing work product for a perceived strategic advantage.
Similarly, a party’s disclosure of attorney-client privileged communications during negotiations could constitute a waiver of that privilege. 33 Other courts have found that“The mere fact that opposing parties may have a common interest in settling claims does not neutralize the fact of disclosure,
These cases should serve as cautionary tales to attorneys who assume—wrongly—that any information exchanged during perceived negotiations is “privileged” or otherwise “confidential.” To the contrary, documents given to an adversary are assuredly not protected from the discovery process unless the parties agree to that or unless some sort of mediation or settlement protection applies.
Waiving the Fifth Amendment Privilege in a Civil Proceeding
We have thus far focused on the attorney-client privilege and the work-product doctrine. Let us now turn to another key privilege: the Fifth Amendment privilege against self-incrimination. While this privilege does not appear as frequently in civil litigation as the attorney-client privilege, it is not uncommon. Much ink has been spilled elsewhere regarding how an adverse inference can be drawn in civil litigation, so we still stay focused on the issue of waiver.
In civil litigation, the Fifth Amendment privilege can be invoked—and, conversely, waived—before trial even occurs. For example, a party can invoke, or waive, the privilege during discovery, most likely during a deposition, in an affidavit/declaration, or in response to an interrogatory. But later, that same party might attempt to invoke the privilege at trial. The natural question then arises: Does the earlier, pretrial waiver preclude invocation of the privilege at trial?
Find an Analogy in Criminal Law
Criminal cases have examined the issue more often, with questions arising regarding the differences between a waiver at a deposition and a grand jury versus a trial. These courts consider these stages as separate and distinct “proceedings” for Fifth Amendment purposes. Absent on-point civil authority in your forum, you might find an analogy to criminal cases helpful in arguing that the waiver at a deposition does not extend to the trial in a civil proceeding.
Split in Authority in Civil Courts
The relatively few civil courts addressing this issue have not yet come to a consensus on whether a pretrial Fifth Amendment waiver is binding at trial. A recent federal case from the U.S. Court of Appeals for the Sixth Circuit involving the Flint water crisis, In re Flint Water Cases, helpfully collected many of these authorities and analyzed the various approaches to answer the question of whether testifying at a civil deposition necessarily
Federal district court concludes pretrial waiver carries over to trial.In a thoughtful opinion, the court relied primarily on the U.S. Supreme Court case of Mitchell v. United States for the following proposition:
Surveying authorities from across the country in both federal and state courts, Judge Levy concluded that “most other courts that have considered the issue” agreed that
That set the stage for the Sixth Circuit to weigh in.
Sixth Circuit holds pretrial waiver does not carry over to trial. On appeal, the Sixth Circuit reversed the district court, but the road to that reversal was not a straight one. Each of the three judges on the panel wrote separately on the Fifth Amendment issue.
For Judge Griffin, the “threshold question” was Unlike the district court and the dissent, Judge Griffin did not find Mitchell to be binding; instead, If so, then waiver carries over; if not, then no carryover.
He also focused on persuasive cases from other jurisdictions that examined waiver in various pretrial proceedings, Ultimately, he concentrated on “cross-examination” as Because a deposition offers cross-examination, the witness cannot “mutilate” the truth, as the witness cannot invoke the Fifth Amendment on an issue at cross-examination after testifying about it on direct.
Thus, even if live testimony is not available for the judge or jury because the Fifth is invoked, the witness’s waiver of the Fifth Amendment at the deposition still carries over in the form of the transcript.
Finally, Judge Griffin returned to the purpose-driven inquiry, concluding that the purpose of a deposition is to produce as much evidence as possible, whereas the purpose of a trial is to present accurate andThus, the purposes are different, resulting in different proceedings.
An originalist concurring opinion. Judge Amul Thapar concurred with Judge Griffin on the Fifth Amendment issue,However, he rejected Judge Griffin’s focus on whether a civil deposition and a trial are a single proceeding, joining only in the result of the Fifth Amendment issue and a small fraction of the lead opinion’s reasoning.
After a detailed analysis of historical authorities, he found that
favored by both the lead and dissenting opinions, was not controlling in his historical view. that the dissent relied on.
A purpose-driven dissent.But the two judges agreed on little else, debating point by point whether depositions and trials serve the same purpose. Likewise, Judge Moore focused on policy rationales, in stark contrast to Judge Thapar. For Judge Moore, a witness must live with the consequences of waiving a privilege in civil discovery, At the end of her comprehensive opinion, Judge Moore observed the practical reality that a witness need only invoke the Fifth Amendment at deposition to avoid any concern about carryover to trial.
In sum, In re Flint Water Cases has gifted the bar with three meticulously researched, well-reasoned, and articulate opinions that engaged in a thoughtful dialogue. Regardless of which opinion a reader might personally agree with, the collection of these opinions provides a full array of arguments for and against a carryover waiver from a civil deposition to a civil trial.
State courts debate the waiver issue. The recent debate within the Sixth Circuit panel had already been playing out among state courts.The court distinguished a deposition from other pretrial events based on the fact that a deposition subjects a party to a cross-examination under oath and Therefore, in the Granite State, it is possible for an individual to waive the privilege at the deposition and subsequently invoke the privilege at trial.
In one case from Moser v. Heffington, the court posed the question directly: Moser concluded that a civil deposition and a trial are part of the same proceeding for purposes of the The court emphasized that the witness had made a voluntary choice to waive the privilege and that presaging Judge Moore’s dissenting position in In re Flint Water Cases.
In Moser, the civil litigant’s concern about potential criminal liability was not theoretical: criminal proceedings were unfolding concurrent to the civil proceedings. A decision about whether to testify at a pretrial civil deposition must account for the likelihood of a criminal proceeding; and if the criminal proceeding is already underway, then consideration must be given to whether a stay of one of the proceedings would be appropriate.
Turning briefly back to federal law, another case involving concurrent criminal and civil litigation shows the perils of failing to consider the interplay between the various proceedings.The court found that the party had waived the privilege—
When waiver issue is a matter of first impression. In sum, the courts—and even judges on the same court—are closely divided on the Fifth Amendment privilege issue.But most civil jurisdictions, both state and federal, have not yet faced this question. Going forward, most attorneys facing this issue will have to argue it as a matter of first impression.
This lack of predictability can be daunting, but it is also exciting for the enthusiastic attorney. Faced with a blank slate in a given jurisdiction, an attorney can utilize persuasive arguments from other jurisdictions—including persuasive arguments from criminal proceedings—on this issue. As more cases arise on this issue, attorneys should keep up-to-date with developments in their own jurisdiction to stay aware of any new precedent on this topic.
An overarching concern when it comes to privileges is the uncertainty: Has a waiver occurred, and what is the scope of the waiver? While there are obvious differences between the attorney-client privilege, work-product protection, and Fifth Amendment privilege, the tips below could help ensure a more predictable outcome.
- Your jurisdiction matters—a lot. Different states, and sometimes different federal circuits and district courts, adopt different approaches to waiver. Pay close attention to the choice-of-law issue. And if you find yourself in a jurisdiction that has not yet decided the issue, there is likely to be on-point authority somewhere else that you can cite as persuasive authority.
- An ounce of prevention is worth a pound of cure. Avoiding waiver in the first place is, of course, ideal. In modern civil litigation, the most likely culprit for the disclosure of a privileged or work-product document is in the context of voluminous document production. Implementing a careful document review protocol is essential to minimizing that risk.
- Getting ahead of a potential waiver with a careful clawback agreement is also a prudent measure. In fact, this rule was specifically amended to work in tandem with
- Consider whether your Federal Rule of Civil Procedure 26(f)(3) meet and confer should also cover the exchange of materials during any negotiations. It is possible to waive privilege and work-product protections during negotiations, so an agreement precluding such waivers might be prudent.
- Remember that a clawback agreement binds only the parties to that agreement, whereas a clawback order entered by the court can also bind third parties. Without a court-ordered provision that prohibits third parties from taking advantage of a waiver—for example, a document mistakenly produced turns up on the public docket when attached to a motion—the third party will be uninhibited. Therefore, strongly consider submitting your clawback agreement to the court for entry as a binding order.
- For the Fifth Amendment privilege in a civil case, you will probably face a paucity of precedent in your jurisdiction. If so, you might be able to gather criminal cases in your jurisdiction, or one nearby, to argue that a pretrial waiver should not constitute a waiver at trial. Or, if you are on the other side of the issue, you can find several federal authorities, plus some state authority, going the other way.
- If you are in a jurisdiction where a civil pretrial waiver does not carry over to trial, remember that the transcript still might “carry over” and be read (or, if videotaped, played) into the record. For that reason, and the possible use of the civil testimony in a criminal case, the prudent move might still be to invoke the Fifth Amendment in the civil pretrial setting.
Originally published in The Brief, Volume 52, Number 3, Spring 2023, at 34–41; reprinted in GPSolo eReport, Volume 13, Number 3, October 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association Tort Trial and Insurance Practice Section or Solo, Small Firm and General Practice Division.