At-issue waiver arises where a party affirmatively relies on legal advice as part of a claim or defense, such as asserting reliance on counsel or a good faith belief formed on legal guidance.
Merely denying an allegation does not waive.
Alternative Names:
Implied Waiver, Issue Injection Waiver
Why it Matters?
This waiver is a strategic decision disguised as a defense, because asserting advice of counsel opens the underlying communications and often the entire subject matter. A carrier defending bad faith by pointing to its coverage opinion has generally waived privilege over that analysis and the file supporting it. The decision to raise the defense should be made with the scope of the resulting production understood in advance.
Frequently Confused with
Related terms
Frequently asked questions
What triggers at-issue waiver?
Does denying an allegation waive?
