Privilege may be waived expressly, by voluntary disclosure to a third party, or impliedly by placing the substance of legal advice at issue in the litigation.
Waiver may extend beyond the disclosed communication to related communications on the same subject, though Rule 502(a) limits that extension in federal proceedings.
Alternative Names:
Privilege Waiver, Loss of Privilege
Why it Matters?
At-issue waiver is the trap most parties do not see coming, because asserting reliance on counsel as a defense, or claiming good faith based on legal advice, opens the underlying communications. A carrier defending bad faith by pointing to its coverage counsel's opinion has generally waived privilege over that analysis. The decision to raise such a defense should be made with the waiver consequences understood.
Frequently Confused with
Related terms
Frequently asked questions
What is at-issue waiver?
Does disclosure to one person waive the whole subject?
