Privilege and Work Product
Waiver
Subject-matter waiver applies where fairness requires that a party disclosing favorable privileged material also produce related communications on the same subject. Federal Rule of Evidence 502(a) limits it to intentional disclosures where fairness so requires.
It does not extend to inadvertent disclosures.
Alternative Names:
Scope of Waiver, Broad Waiver
Why it Matters?
Rule 502(a) narrowed this doctrine substantially by confining it to intentional disclosures made to gain advantage, which addressed the prior risk that any disclosure could open an entire subject. The remaining exposure is selective disclosure of favorable material, which is precisely the fairness concern the rule preserves. Producing a helpful opinion while withholding the rest of the analysis is the fact pattern that triggers it.
Frequently Confused with
Related terms
Frequently asked questions
When does subject-matter waiver apply?
Does inadvertent disclosure trigger it?
