chevron-down Created with Sketch Beta.
September 05, 2023 Feature

Waiving and “Un-Waiving” Privileges in Civil Litigation

Kenneth Duvall and Saron Musa
Whether a waiver can be “clawed back” depends on the type of privilege at issue, the jurisdiction, and the diligence in trying to reverse the waiver.

Whether a waiver can be “clawed back” depends on the type of privilege at issue, the jurisdiction, and the diligence in trying to reverse the waiver.

iStock/Getty Images Plus/nathaphat

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). Applying that principle to issues of privilege, Federal Rule of Evidence 501 defers to the state on privilege issues “regarding a claim or defense for which state law supplies the rule of decision.” 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. For any case in federal court—even when state law provides the substantive rules of decision for the privilege under Rule 501—attorneys must look to Federal Rule of Evidence 502 on the issue of waiver, at least when the attorney-client privilege and work-product doctrine are at issue. (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.

When the disclosure at issue (i.e., the possible waiver) occurred in a federal proceeding, Rule 502 determines whether there was a waiver at all. Rule 502(b) contains the default test: there is no waiver as long as (1) the disclosure was inadvertent, (2) the privilege holder took reasonable steps to prevent disclosure, and (3) the privilege holder took reasonable steps to rectify the error. The burden to prove that the elements of Rule 502(b) have been met—and thereby avoid waiver—is on the disclosing party. Note that if the federal court orders that there was no waiver, that order is binding in any other federal or state proceeding.

If the federal court finds that there was a waiver in a federal proceeding, Rule 502(a) then determines whether that waiver in federal court extends to as-yet-undisclosed communications and information in federal and state proceedings. That is, the court must determine whether there has been a subject matter waiver, which obviously can be a more serious blow than simply a waiver of the disclosed communications. 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 (3) the disclosed and undisclosed communications or information ought not to be considered together in fairness. 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.

In a seemingly less common scenario, a federal judge must determine whether a disclosure in state court caused a waiver of that information or communication in federal court. In that scenario, Rule 502(c) provides the test, 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) as if the disclosure had occurred in federal court, then there is no waiver.

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 include (1) the reasonableness of the precautions taken to prevent the inadvertent disclosure, (2) the number of inadvertent disclosures, (3) the extent of the disclosure, (4) the amount of time a party took to rectify the disclosure, and (5) overriding interests in justice or fairness. This 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)

The federal court test under Rule 502 for whether there has been a waiver of the attorney-client privilege or work-product doctrine in federal court is the “middle ground” approach. Before Rule 502(b) adopted the compromise position, some courts established a lower threshold for finding waiver (“strict liability” or “strict accountability”), while other courts adopted a higher threshold (“lenient” or “to err is human”). Some state courts might still use one of these “extreme” approaches, so pay attention to your jurisdiction.

If litigants wish to contract around Rule 502(b), courts generally find that they are free to do so. 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.

“‘Clawback’ agreements essentially ‘undo’ a document production. A clawback arrangement involves the return of documents without waiver irrespective of the care taken by the disclosing party.” One reason why clawback agreements can modify the default test in Rule 502(b) is that clawback agreements “are specifically mentioned in the 2006 Advisory Committee Note to Fed.R.Civ.P. 26(f) as a way to reduce discovery costs and delays and to minimize the risk of waiver.”

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.

For example, in one case, the parties agreed to a clawback agreement that only included three bullet points exchanged via email. The vague language did not expressly state whether the parties had agreed to eliminate a preproduction review, which led to a dispute on that topic. Because the parties had agreed to exchange privilege logs, the court ultimately inferred that the parties did intend to conduct a preproduction review. 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. When a party has produced information in discovery that it now claims is privileged or work product, the burden is on that party to notify the recipient of its claim. 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; and seek a determination from the court to resolve the issue.

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).

For example, Florida Rule of Civil Procedure 1.285 also has a waiver test built around Federal Rule of Evidence 502(b)(1): whether the disclosure was inadvertent. 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,” which seems to track the second element of the federal test in Federal Rule of Evidence 502(b)(2).

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—to the recipient of the disclosure within 10 days of actual discovery of the inadvertent disclosure. And unlike Federal Rule of Civil Procedure 26(b)(5)(B), the Florida rule is likewise specific as to the recipient of the materials: any challenge to the holder’s notice must be made within 20 days.

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 [1] the client intended to maintain the confidentiality of the document, [2] reasonable steps were taken to prevent disclosure, [3] the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and [4] the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued.

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.

The work-product doctrine is not a privilege. Instead, it is generally considered a type of qualified immunity. 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—which effectively prevents waiver when third parties share a common legal interest—operates more broadly with work product than it does with privileged communications.

Beware of Work-Product and Privilege Waiver in Negotiation Contexts

One particular context has proven treacherous for work-product waivers: some jurisdictions hold that parties waive work-product protection when they disclose the information at settlement negotiations. Granted, some cases limit that type of waiver to the document at issue rather than imposing a broader, subject matter waiver. 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. For example, some courts have considered disclosures at a negotiation or mediation to be a waiver of the attorney-client privilege. “The mere fact that opposing parties may have a common interest in settling claims does not neutralize the fact of disclosure, because that common interest always exists between opposing parties in any attempt at settlement.”33 Other courts have found that parties can avoid waiver when exchanging documents during settlement negotiations by agreeing that exchanged information will remain confidential.

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

This relatively novel question seemingly has not been addressed by most civil jurisdictions. Thus, some civil courts look to criminal cases that address the difference between a pretrial event and a trial. 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. In those cases, the general trend is that a waiver at an earlier stage, like a deposition, does not constitute a waiver at the 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 waives the Fifth Amendment privilege against self-incrimination at a subsequent trial in the same case.

Federal district court concludes pretrial waiver carries over to trial. At the district court level in the Flint water crisis proceedings, Judge Judith Levy held that testifying at a pretrial deposition did indeed waive invocation of the Fifth Amendment privilege against self-incrimination at a later trial in the same civil case. In a thoughtful opinion, the court relied primarily on the U.S. Supreme Court case of Mitchell v. United States for the following proposition: “‘It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.’ Instead, ‘the privilege is waived for the matters to which the witness testifies.’”

The district court elaborated further on the meaning of “proceeding,” finding that a deposition is simply one of the “‘events between the time of commencement and the entry of judgment’ that together make up this single civil action.” 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 “civil depositions occur after the filing of a civil proceeding and are an integral part of it.”

Recognizing that “reasonable jurists have, in fact, disagreed on the issue’s resolution,” Judge Levy allowed the parties to take an immediate, interlocutory appeal. 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. The fractured opinions of the court are an appropriate microcosm of the larger debate across other jurisdictions.

Judge Richard Griffin issued the thorough lead opinion, holding that “a Fifth Amendment waiver does not extend to trial” where a witness “testif[ied] at a pretrial deposition.” For Judge Griffin, the “threshold question” was “[W]hat constitutes a single ‘proceeding’ under the Fifth Amendment?” Unlike the district court and the dissent, Judge Griffin did not find Mitchell to be binding; instead, it was only “instructive” in providing the purpose-based analysis, i.e., whether a deposition and a trial share a purpose. If so, then waiver carries over; if not, then no carryover.

Lacking binding precedent from the Supreme Court or the Sixth Circuit, Judge Griffin turned to treatises for definitions of “proceeding.” He also focused on persuasive cases from other jurisdictions that examined waiver in various pretrial proceedings, ranging from criminal stages like grand juries and preliminary examinations to civil pretrial affidavits. Ultimately, he concentrated on “cross-examination” as the crucial factor in determining what qualifies as a Fifth Amendment proceeding.” 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.

Critically, Judge Griffin noted that the deposition testimony might be admissible at trial even if the witness invokes the Fifth at trial. 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.

Bolstering his opinion with the policy rationales underlying the Fifth Amendment, Judge Griffin further observed that each time a witness testifies, there might be new risks of self-incrimination, ranging from the inherent risk of perjury to the risk that circumstances have changed since the last time testimony was provided.

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 and trustworthy evidence. Thus, the purposes are different, resulting in different proceedings.

An originalist concurring opinion. Judge Amul Thapar concurred with Judge Griffin on the Fifth Amendment issue, writing that “[b]ecause appellants’ waiver extends only through cross-examination, appellants can invoke the Fifth Amendment when called to testify anew at trial.” 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.

Instead of focusing on the “single proceeding” issue, Judge Thapar adopted an originalist approach. After a detailed analysis of historical authorities, he found that “the text and history reveal that the appellants can invoke their right to remain silent at trial because their waivers don’t extend beyond cross-examination at their depositions.”

Despite disagreeing with the other modes of analysis, Judge Thapar did tackle the other opinions’ analyses. He explained why the “proceeding-specific” analysis, favored by both the lead and dissenting opinions, was not controlling in his historical view. He also rebutted the policy rationales, like “distortion-of-truth” and “fairness,” that the dissent relied on.

A purpose-driven dissent. Rounding out the panel, Judge Karen Moore agreed with Judge Griffin that the question was whether a deposition was a distinct proceeding from trial. 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, and it is a foreseeable consequence to a civil litigant that testifying about a topic at deposition means having to testify about it at trial. 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. On one side of the debate, the New Hampshire Supreme Court is on the side of the In re Flint Water Cases majority, emphasizing the potentially incriminating nature of a deposition. 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 creates a transcript that could be used later at trial. 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.

Other state courts, though, have ruled that a deposition and a trial are the same proceeding for Fifth Amendment purposes. In one case from Maryland’s court of last resort, Moser v. Heffington, the court posed the question directly: “Did [the witness] waive her Fifth Amendment privilege in the civil action by testifying at her deposition and providing other discovery responses without invoking the privilege after she was on notice that the police were investigating her for [crimes]?” Moser concluded that a civil deposition and a trial are part of the same proceeding for purposes of the Fifth Amendment. The court emphasized that the witness had made a voluntary choice to waive the privilege and that “self-selected” testimony would “mutilate” the process, 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. Prior to filing a motion to stay the civil proceeding, the party testified at a civil deposition regarding the only issue in the criminal trial. The court found that the party had waived the privilege—even though the party was pro se.

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. Our survey of the existing cases suggests that the weight of civil authority is against a pretrial waiver automatically carrying over to a trial. 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.

Practice Pointers

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. Federal Rule of Civil Procedure 26(f)(3)(D) requires the parties to discuss a clawback agreement and whether such an agreement should be presented to the court as an order. In fact, this rule was specifically amended to work in tandem with Federal Rule of Civil Procedure 26(b)(5)(B), meaning that the rules themselves encourage parties to efficiently deal with clawback issues that may arise.
  • 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.
    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    Kenneth Duvall

    Bilzin Sumberg Baena Price & Axelrod LLP

    Kenneth Duvall is a partner at Bilzin Sumberg in Miami, Florida. His practice primarily focuses on business and financial litigation, as well as land use, insurance, and product liability matters.

    Saron Musa

    Bilzin Sumberg Baena Price & Axelrod LLP

    Saron Musa is an associate at Bilzin Sumberg in Miami, Florida. Her practice primarily focuses on business litigation.