April 2005
Less Privileged: Unexpected Waivers of the Attorney-Client Privilege
by Roger D. Mellem
Introduction
The January 2005 issue of ABA Journal carried an interesting article, “Flying Under the Radar.” It identified a number of legal issues the Journal said have percolated quietly for a number of years but now may grab headlines.
The first issue the article cited? Erosion of the attorney-client privilege.
If you do not counsel corporate clients that do business in Europe, you may not need to know that the European Commission has taken the position that corporate communications with retained counsel from outside EU member states are not privileged. But at least you should be aware of domestic developments that threaten the confidentiality of attorney-client communications.
The attorney-client privilege is an ancient legal tradition, but current trends are diminishing its former force.
Discussed here are three attorney-client privilege issues that are becoming increasingly prevalent. First, several federal government agencies — under pressure from Congress and the public to rein in “rogue” corporations — are making waivers of the attorney-client privilege a condition of cooperation-based deals to avoid prosecution or obtain lesser punishments. Second, executives of a company that seeks bankruptcy protection may find control of information protected by the attorney-client privilege has fallen out of their hands. Third, if an attorney uses privileged information in negotiations, or creates a litigation issue that depends for its resolution on the content of privileged communications, adverse parties are often entitled to much more material than the attorney — or the client — intended to provide.
Attorney-Client Privilege and Government Investigations
Government Agencies Are Increasing Pressure on Companies to Waive the Attorney-Client Privilege
As more corporate crimes have been uncovered in the last few years, the federal government has moved to crack down on corporate transgressions perceived to threaten the country’s financial system. The U.S. Department of Justice (DOJ) is leading this response, arming prosecutors with tools that have significant impacts on both the attorney-client privilege and work-product doctrine. Corporations involved in Securities and Exchange Commission (SEC) investigations face nearly identical privilege issues, but for simplicity the discussion here will focus on the DOJ.
The centerpiece of the DOJ’s strategy for prosecuting corporations is a memorandum written earlier this year by Deputy Attorney General Larry Thompson. He addressed various factors to be taken into account when a federal prosecutor is deciding whether to file criminal charges against a corporation.1 The Thompson Memorandum tells prosecutors that, when deciding whether to file charges, they should consider the extent to which the corporation voluntarily cooperates.2 Voluntary cooperation includes disclosing the results of the corporation’s internal investigations and waiving the attorney-client and work-product protections. Corporations that cooperate with DOJ investigations by waiving the attorney-client privilege and work-product doctrine (as well as cooperating otherwise) receive preferential treatment; in addition to the possibility of lesser (or no) charges against the corporation, any criminal penalties may be reduced.3
The DOJ characterizes the need for privilege waivers as a means of determining the veracity and completeness of a corporation’s cooperation.4 Further, the Thompson Memorandum attempts to downplay the DOJ’s forays into piercing attorney-client privilege by stating that waivers are not “an absolute requirement” and “should ordinarily be limited to the factual internal investigation and any contemporaneous advice given to the corporation concerning the conduct at issue.”5 However, anecdotal evidence from the defense bar indicates that the DOJ customarily is seeking privilege waivers as a condition of concluding that a company has cooperated.
According to defense attorneys, DOJ “routinely” requests waivers at the onset of discussions with companies regarding alleged criminal conduct.6 In contrast to DOJ’s repeated assertions that waiver of the attorney-client privilege is not a requirement,7 defense attorneys feel that DOJ has made waiver the epitome of corporate cooperation.8 As one attorney stated, “A few years ago, only big offices in big cases sought waiver of privilege. Now it is almost routine to see each U.S. Attorney require it. They are forcing corporate counsel’s hand. For the last year I have counseled my corporate clients that they have to assume that the Justice Department will see anything they put in writing.”9
The consequences of not waiving the privilege during a DOJ investigation are clear. Failure to waive the attorney-client privilege or work-product doctrine can reduce the credit a corporation receives for cooperating with DOJ. Rather than singling out individual wrongdoing on the part of employees, the DOJ can prosecute the corporation as a whole and be less inclined to offer a plea bargain.10 Moreover, non-cooperating entities are treated more harshly under the federal sentencing guidelines.11
While the pressure from the DOJ to waive attorney-client privilege is undeniably strong, there may be great risk in waiving it. In most jurisdictions, the privilege cannot be selectively waived; once the privilege is waived to demonstrate cooperation to DOJ, it cannot be “resurrected” in dealing with plaintiffs’ lawyers.12 Although waiver of the privilege during a DOJ investigation may be common in this era of corporate scandal, counsel would be well advised to undertake a rigorous analysis before allowing plaintiffs’ attorneys a free run at privileged communications.
Corporate Officers Can Waive the Corporate Privilege After the Corporation States an Explicit Intention Not to Waive the Privilege
Even when a corporation has stated in writing that it wishes to maintain its attorney-client privilege, corporate officers potentially can “impliedly waive” the privilege.13 Similar to cases in the “at-issue waiver” discussion below, the U.S. Court of Appeals for the Second Circuit decided a case where the chairman of a company testified before a grand jury in his individual capacity and alluded to advice from counsel as a defense in his testimony. The case involved the company’s alleged criminal conduct, and the company had frequently indicated that it was not waiving the privilege. However, the court held the corporate officer could waive the corporation’s privilege.14
Work-Product Protection May Survive When the Attorney-Client Privilege Does Not
While the attorney-client privilege does not withstand any waiver, the federal courts are divided on the ability of a corporation to preserve work-product protection over confidential documents that it has revealed to the government.15 Courts have increasingly recognized that the goals of the two protections are somewhat different. The attorney-client privilege protects the sanctity and confidentiality of the attorney-client relationship; the work-product doctrine protects the workings of the adversarial system by keeping “trial preparation material” from opposing parties.16
The federal circuit courts are split, however, among three general theories on selective waiver of the work-product doctrine. First, the 8th Circuit held that releasing a company’s internal investigation results to the federal government was only a “selective waiver” and did not have to be disclosed to third parties.17 Second, a plurality of courts recognizes no “valid limitation on a waiver of confidentiality.”18 Third, some courts, led by the 2nd Circuit, have taken a flexible approach to work-product protection waiver by indicating that either a common interest between parties sharing confidential information, or a confidentiality agreement, may serve to limit the waiver and keep the protection intact beyond limited disclosure to government officials.19
The common-interest rule is an exception to waivers that applies when the two parties exchanging confidential information are truly in a non-adversarial relationship, e.g., two criminal codefendants. Typically, courts have found the common interest exception does not apply to companies releasing information to government agencies that are investigating them.20 In one particularly harsh example, a magistrate judge refused to protect privileged information that an insurance company dealing with a “rogue” employee shared with government officials, even though the government’s investigation was at the request of the company.21
Confidentiality agreements that entities waiving work-product protection enter into with investigating government agencies have fared better in courts than common-interest arguments. One court has even allowed an oral confidentiality agreement to limit a corporation’s work-product protection waiver to disclosures to the U.S. Attorney’s Office.22 However, several courts have held that work-product protection is completely waived if protected materials are shared with government investigators — notwithstanding the existence of a confidentiality agreement — on the theory that deliberate disclosure to an adversarial agency is inimical to the principles supporting the work-product doctrine.23
Waiver of work-product doctrine in the 9th Circuit is not any further settled at the time of this writing than it is nationally. But the 9th Circuit currently has before it a case where the district court ruled that even if there is a confidentiality agreement in place, attorney-client and work-product protections are waived if the corporation being investigated gives the government documents detailing the corporation’s internal review.24
In the climate of increased publicity surrounding corporate governance and wrongdoing, it seems likely that the Supreme Court will address waiver of attorney-client privilege and work-product doctrine sooner rather than later. In the meanwhile, given the multitude of approaches that courts are taking in protecting or not protecting privilege after information is shared with the government, corporate counsel is well advised to be extremely cautious in dealing with government investigators, particularly from the DOJ or SEC.
Attorney-Client Privilege and Bankruptcy
Bankruptcy filings present an important consideration beyond the simple economics of entering bankruptcy protection, namely, the potential for waiver of the attorney-client privilege. Although waiver issues here are relatively simple, particularly for corporations, attorneys still should be aware of the potential ramifications.
Corporate Attorney-Client Privilege Is Controlled by the Bankruptcy Trustee
Like most other corporate powers, the power to waive the attorney-client privilege over pre-bankruptcy communications is vested in the debtor corporation’s bankruptcy trustee.25 A corporation’s officers and directors have no power to prevent the trustee from waiving the privilege, even if waiver exposes those officials to personal liability.26
In Commodity Futures Trading Commission v. Weintraub,27 the U.S. Supreme Court held that because “corporate directors fail to retain any managerial power in a bankruptcy reorganization, management should also not retain control over the attorney-client privilege.”28 The main reason for giving trustees control over the attorney-client privilege is to prevent corporate directors from inhibiting the operation of bankruptcy law, and to allow trustees to fulfill their role of balancing creditor and shareholder needs.29
There are three notable situations where the trustee’s power to waive the privilege does not extend. First, if prior to filing for bankruptcy a corporation establishes a special committee and specifically authorizes the committee to retain separate counsel, then the special committee’s attorney-client privilege is separate from the corporation’s and does not come within the trustee’s control.30 Second, if individual corporate officers can demonstrate that communications with corporate counsel were personal, then those communications will not be subject to a trustee’s waiver of the attorney-client privilege.31 A third area arises when the company and its officers and directors are jointly represented by one lawyer. In that situation, the trustee should not be able to waive the privilege absent consent of the individual clients.
Individuals May or May Not Lose Control Over Their Attorney-Client Privilege in Bankruptcy
Although Weintraub is quite direct about the trustee controlling the attorney-client privilege in corporate bankruptcies, the Supreme Court was equally explicit in stating that it was not making any determination as to individual bankruptcies.32 As a result, the rule for control of attorney-client privileges in individual bankruptcies is that there is no rule.33 While there are three federal court approaches in this area, there is significant division among the circuit courts, district courts, and even within the districts.34
First, some courts have treated individuals like corporations, transferring the attorney-client privilege to the trustee.35 Second, other courts have established a rule that the individual debtor never cedes control over his or her privilege.36 Third, an increasing number of courts are analyzing individual bankruptcies on a case-by-case basis, balancing the harm that waiver would cause the debtor with “the effect on attorney-client privilege.”37
With critics divided between which approach is best and no Supreme Court relief from the muddle in sight, counsel must carefully research the applicable attorney-client privilege rules to ensure they protect all of their client’s interests in bankruptcy.38
Washington’s “Fairness Approach” to the Attorney-Client Privilege: Tactical Advantage and “At-Issue” Waivers
We turn now to a state law issue. Washington narrowly construes the attorney-client privilege and provides that a party will be deemed to have waived the privilege when it uses the privilege in what the court determines is an “unfair” manner. The attorney-client privilege is “strictly limited” in Washington, because the courts recognize that it serves to suppress evidence that otherwise would aid the courts in their truth-seeking function.39 In developing this limitation, Washington has adopted the liberal “fairness approach” for implied waivers of attorney-client privilege first recognized in Hearn v. Rhay.40 Washington applies two related doctrines to ensure that parties do not use the attorney-client privilege in an unfair manner: the at-issue doctrine and the partial-disclosure doctrine.
Attorney-Client Privilege Is Waived When a Party Puts Advice “At-Issue”
Under the at-issue doctrine, a party implicitly waives its attorney-client privilege by taking an affirmative action that makes attorney advice relevant in the case, if application of the privilege would deny its opponent access to vital evidence needed to counter the waiving party’s position.41 The affirmative act need not put the privileged material directly at issue; the act must merely serve as a catalyst that causes the material to be at issue.42
The affirmative act often is a cause of action or affirmative defense that puts attorney-client privileged material at issue.43 However, the act simply may be an assertion made in a brief on a motion, the truth of which can only be assessed by examining the privileged material.44
For example, in State Farm Mutual Automobile Ins. Co. v. Lee, the court found a waiver because the defendant, rather than simply denying a claim of bad faith, affirmatively asserted in its answer that it had acted in good faith based on its agent’s interpretation of the law.45 Likewise, in Bank Brussels Lambert v. Credit Lyonnais (Suisse), the court found that a party put its attorney’s advice at issue by making a claim of fraud because the advice it had received from its attorneys was relevant on the issue of “reasonable reliance.”46 Similarly, in Baker v. General Motors Corp., the court found waiver after the defendant made a factual assertion in support of a motion to exclude evidence that was partially refuted by privileged attorney notes.47
The leading Washington cases on at-issue waiver of privilege, Pappas and Hearn, are in accord. The two cases had quite disparate factual backgrounds. In Hearn, the attorney-client privilege in question was between the state Attorney General and prison officials accused of civil rights violations. Hearn was a prison inmate who, during his incarceration, had assaulted an inmate and been moved around to several prison areas, including the mental-health unit. Hearn’s suit focused on the mental-health unit, alleging it was a “punitive isolation tier where prisoners with behavior problems are kept in filthy . . . cells without adequate heat, hygienic materials, exercise, reading materials, and occasionally without clothing or bedding” and that treatment was not available in the unit.
The prison officials asserted six affirmative defenses, including that they acted in good faith.48 Under the good-faith standard, public officials are not protected by qualified immunity if they “knew or reasonably should have known” their actions would violate Hearn’s constitutional rights.49
The extent to which the prison officials followed or ignored legal advice from the Attorney General was key to determining if they acted in good faith. The court recognized this, noting “defendants’ communications with their attorney [are] inextricably merged with the . . . defendants’ affirmative defense.”50 In allowing the attorney-client veil to be pierced, the court noted that upholding the privilege here would allow the prison officials to “pervert . . . [the] essential purpose of [the attorney-client privilege] and transform it into a potential tool for concealment of unconstitutional conduct behind a veil of confidentiality.”51
Central to the court’s reasoning in Hearn was that the party asserting attorney-client privilege on a key issue was also the party that introduced the issue as a factor.52 The court’s ruling in Hearn renders it quite difficult for a party to use the attorney-client privilege to hide information relevant to the merits of the assertions that the party has chosen to put at issue.53
Pappas, in contrast, focused on attorney-client privilege issues between farm owners and the various attorneys they had hired to defend against lawsuits over the sale of diseased cattle. The Holloways originally hired Pappas as their attorney, but he withdrew one month before trial. Subsequently, Pappas sued the Holloways for unpaid attorney fees, the Holloways counter-claimed for legal malpractice, and Pappas filed third-party complaints against the other attorneys who represented the Holloways after he withdrew.54
Although the Holloways argued that only publicly available information about the cattle case was relevant to the malpractice claim, the court found their argument lacking, focusing on the need to know what was communicated between the Holloways and all of their attorneys. A malpractice inquiry requires “examining decisions made at various stages of the underlying litigation,” which necessitated the production of otherwise privileged evidence of communications between the Holloways and their attorneys.55
The court recognized the Holloways, like the Hearn prison officials, as the party that created the need to examine the Holloways’ privileged exchanges with their attorneys because it was central to their malpractice claim.56 If the court allowed the Holloways’ malpractice counterclaim to proceed without forcing them to produce the necessary materials, it would be allowing the Holloways to “use as a sword the protection [given to] them as a shield.”57
Partially Disclosing Attorney-Client Communications for Tactical Advantage Waives the Privilege for All Information Related to the Disclosure
Tactical use of otherwise privileged information in an attempt either to gain leverage in settlement, or to gain advantage in litigation, generally waives any privilege that otherwise attached both to the information actually disclosed and to all related attorney-client communications.
Under the partial-disclosure doctrine, if a party discloses a portion of the substance of attorney-client communications that would otherwise be privileged to gain a tactical advantage, the party “waive[s] the privilege of withholding . . . testimony as to all matters relevant to that issue and open[s] the door for inquiry into that particular subject matter.”58
Because the attorney-client privilege hides relevant evidence, courts “need not allow that confidentiality to be used as a tool for manipulation of the truth-seeking process. A party asserting attorney-client privilege cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.”59 Otherwise a party could disclose the portions of privileged information that support its assertions while withholding the portions that undermine those assertions.60
In Martin v. Shaen, the court found a party waived the privilege by disclosing information that created a presumption in its favor, but then tried to assert the privilege to prevent its opponent from learning evidence that rebutted that presumption.61 Similarly, in Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., the court found a party waived the privilege by submitting documents to support its claim that revealed some privileged information but also contained portions redacted because of the attorney-client privilege.62
The court in Seattle NW Securities Corp. v. SDG Holding Co., Inc. held that disclosure of a legal conclusion does not waive the attorney-client privilege.63 The plaintiffs in Seattle NW Securities (SNW) purchased a corporation from SDG under an agreement that required SDG to declare in writing a “reasonable possibility” of success if it wished to defend against litigation which also involved SNW and which SNW wanted to settle (and vice versa).64 Exactly this situation arose: SNW and SDG became defendants in a suit based on their liability from the transferred corporation; SNW wanted to settle and SDG’s attorney wrote a letter indicating that the settlement should not be accepted because “strong and valid defenses are available.”65
SNW soon settled and filed suit alleging, in part, that “SDG had failed to give proper notice and to provide evidence of the reasonableness of its decision to pursue the case.”66 SNW moved to compel production of “any legal opinions . . . regarding the advisability of settling.”67 The trial court granted SNW’s motion, but SDG refused to produce the documents and was held in contempt.
On interlocutory appeal, the Court of Appeals “concluded that no partial disclosure of confidential material sufficient to constitute a waiver of attorney-client privilege occurred.”68 The court also commented that if a disclosure such as one in the instant case “did waive the attorney-client privilege, every letter an attorney writes to opposing counsel, an audit firm, or a witness in a case could be construed as waiving the privilege. To penalize a disclosure of a legal conclusion by characterizing it as a waiver would greatly hamper attorneys in their ability to effectively represent and advise their clients. The exception would swallow the rule and render the privilege a virtual nullity.”69
The partial-disclosure doctrine requires a party consistently to assert the privilege. In Nguyen v. Excel Corp,70 the court found that a party waived the privilege by allowing its executives to answer some questions in depositions that revealed the substance of attorney advice.
The waiver also applies even if the selective disclosure is made during settlement discussions. For example, in In re Martin Marietta Corp.,71 the court found a company waived its attorney-client privilege when it submitted a report to the government during settlement talks to convince the government to drop certain criminal charges. This waiver applied not only to the report, but also to all related attorney-client privileged information on the same subject matter.72 A court reached the same result in Sicpa N. Am., Inc. v. Donaldson Enter.73 There, the plaintiff revealed a report to defendant’s counsel, but only after defendant’s counsel signed an agreement promising not to show the report to anyone, including his client. Despite this agreement, the court found the privilege was waived because “[a] party may not insist on the protection of the privilege for damaging communications while disclosing other selected communications because they are self-serving.”74
In short, a party may not self-servingly insist on the protection of the privilege for communications that would damage its interests if disclosed, while choosing itself to disclose selected related communications.75 As one court put it: “It simply makes a mockery of the law to allow a litigant to claim on one hand that it acted reasonably because it made a legal evaluation from which it concluded the law permitted it to act in a certain manner, while at the same time allowing that litigant to withhold from its adversary and the factfinder information it received from counsel on that very subject and that therefore was included in its evaluation.”76
Conclusion
Attorney-client communications often may be not as permanently confidential as both attorneys and clients commonly suppose them to be. Today it takes alertness, with knowledge of the law and current legal developments, to gain the most benefit from candid attorney-client communications. In the absence of such alertness, clients may be exposed to greater risks than otherwise they may have suspected.
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Roger Mellem is a member of Foster Pepper & Shefelman PLLC, where he chairs the firm’s securities litigation practice group. He appreciates the assistance of Michael Schechter and Ramsey Ramerman in the preparation of this article, and the helpful comments of Timothy Filer.
NOTES
1 Memorandum from the Deputy Attorney General of the United States, Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003) [hereinafter Thompson Memorandum].
2 Thompson Memorandum at 3, 6.
3 Id. at 3, 7 n.3 (“[T]he Sentencing Guidelines reward voluntary disclosure and cooperation with a reduction in the corporation’s offense level.”)
4 Id. at 7, 15.
5 Id. at 7 n.3.
6 See, e.g., Vanessa Blum, Corporate Lawyers See Threat to Vigorous Counseling, The Legal Intelligencer, Mar. 25, 2003 (Blum), at 4; Robert G. Morvillo and Robert J. Anello, Issues Raised When Rare Techniques Are Used by Prosecutors, N.Y.L.J., Oct. 10, 2002, at 3.
7 Blum at 4; Elkan Abramowitz and Barry A. Bohrer, Principles of Federal Prosecution of Business Organizations, N.Y.L.J., March 4, 2003, at 3.
8 Howard W. Goldstein, The Thompson Memorandum, N.Y.L.J., Mar. 6, 2003, at 5.
9 Sue Reisinger, Waiving Privilege Good-Bye?, Corporate Counsel, July 1, 2003, at 117.
10 See Thompson Memorandum at 1-8, n.3.
11 See id.
12 Blum at 4; see generally Lance Cole, Revoking Our Privileges: Federal Law Enforcement’s Multi-front Assault on the Attorney-Client Privilege, 48 Vill. L. Rev. 469, 476 (2003).
13 Mary J. Biros and Andrew L. Wexton, Can a Corporate Officer Waive the Corporation’s Attorney-Client Privilege Against the Wishes of the Corporation, Metro. Corp. Council, Jan. 2001 (“Biros and Wexton”), at 16.
14 The grand jury context, and the limited prejudice to the opposing party, narrowed the extent of the waiver in terms of breadth of issues covered. Biros and Wexton at 16 (discussing In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000)).
15 Robert G. Morvillo and Robert J. Anello, Waiver Issues in Corporate Investigations, N.Y.L.J., June 3, 2003 (Waiver Issues), at 3.
16 Id.
17 Id. (discussing Diversified Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1978)).
18 Waiver Issues at 3.
19 Id. (discussing In re Steinhard Partners LP., 9 F.3d 230 (2d Cir. 1993)).
20 Waiver Issues at 3.
21 Id. (discussing Bank of America v. Terra Nova Ins. Co., 212 F.R.D. 166 (S.D.N.Y. 2002)).
22 Waiver Issues at 3 (discussing Maruzen Co. Ltd. v. HSBC USA, Inc., No. 00 CIV. 1079(RO), 2002 WL 1628782 (S.D.N.Y. July 23, 2002)).
23 Waiver Issues at 3.
24 Reisinger at 117 (discussing United States v. McKesson Corp., No. 03-10024 (9th Cir., filed Jan. 23, 2003)).
25 Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985) (Weintraub). Not every bankruptcy involves a trustee. A Creditors’ Committee that takes over under a confirmed bankruptcy plan can also waive the privilege, as can the debtor-in-possession in seeking to pursue or investigate potential claims against former officers or directors.
26 Weintraub, 471 U.S. at 353-54.
27 See footnote 25.
28 Ralph McCullough, et al., Trustees: The Ability to Waive the Debtor’s Attorney-Client Privilege, 106 COM. L.J. 1 (McCullough), at *2-*4 (2001).
29 Id. at *5-*6.
30 Michael C. Silberberg, On Opposing Counsel Depositions, Discovery Supplementation, N.Y.L.J., Nov. 2, 2000, at 3.
31 Howard W. Goldstein, More Pitfalls in Joint Representation and Joint Defense, N.Y.L.J., Jan. 3, 2002, at 5.
32 McCullough at *4 (citing Weintraub, 471 U.S. at 356-57).
33 McCullough at *7-*8.
34 Julianna M. Thomas, Fifteen Years After Weintraub: Who Controls the Individual’s Attorney-Client Privilege in Bankruptcy, 80 B.U. L. REV. 635 (2000).
35 McCullough at *9-*10; Thomas at 658.
36 McCullough at *11; Thomas at 667.
37 McCullough at *14; Thomas at 661.
38 McCullough at *23; Thomas at 679-80.
39 Pappas v. Holloway, 114 Wn.2d 198, 203-04, 787 P.2d 30 (Wash. 1990).
40 68 F.R.D. 574 (E.D. Wash. 1975). See Pappas, 114 Wn.2d at 207-08 (adopting Hearn over other more conservative waiver approaches); see also State Farm Mutual Automobile Ins. Co. v. Lee, 13 P.3d 1169, 1173 (Ariz. 2000) (describing Hearn approach as the “fairness approach” and relying on Hearn and Pappas to support a finding that party waived attorney-client privilege by putting attorney advice at issue).
41 Pappas, 114 Wn.2d at 207 (citing Hearn, 68 F.R.D. at 581).
42 Pappas, 114 Wn.2d at 208.
43 See, e.g., Pappas, 114 Wn.2d at 201 (defendants’ counterclaim).
44 See, e.g., State Farm, 13 P.3d at 1173-74 (finding insurer’s claim in its answer that it acted in good faith based on its interpretation of the law waived attorney-client privilege); Baker v. General Motors Corp., 197 F.R.D. 376, 388-89 (W.D. Mo. 1999) (holding that defendant’s factual assertion in motion waived privilege because the only information the plaintiff could use to refute that assertion was contained in privileged notes made by defense counsel); Gov’t Guar. Fund of the Republic of Finland v. Hyatt Corp., 177 F.R.D. 336, 341-42 (D.C.V.I. 1997) (finding defendant put privileged information at issue by submitting an attorney’s declaration that contained substantive evidence in defense of a summary judgment motion); see also Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506, 510 (S.D.N.Y. 2002) (“finding a broad waiver of attorney-client privilege where a party asserts a position the truth of which can only be assessed by examination of the privileged communication”) (quotation omitted).
45 State Farm, 13 P.3d at 1175 (this assertion was not made as part of an affirmative defense). See also State Farm Mutual Automobile Ins. Co. v. Lee, 4 P.3d 402, 409 (Ariz. App.), reversed, 13 P.3d 1169 (Ariz. 2000).
46 Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506, 510 (S.D.N.Y. 2002)
47 197 F.R.D. at 388-89.
48 Hearn, 68 F.R.D. at 576-77.
49 Id. 578.
50 Id. at 582.
51 Id.
52 Id. at 581.
53 Id. at 581-82.
54 Pappas, 114 Wn.2d at 199-202.
55 See id. at 208-09.
56 Id. at 208.
57 Id. at 208.
58 Martin v. Shaen, 22 Wn.2d 505, 513, 156 P.2d 681 (1945); see also Seattle NW Sec. Corp. v. SDG Holding Co., 61 Wn. App. 725, 739, 812 P.2d 488 (1991) (“the claim of attorney-client privilege is not consistent with selective disclosure of the privileged documents when the claimant decides that the confidential materials can be put to other beneficial purposes”) (quotations omitted).
59 Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143, 151 (D.C. Cir. 1997) (alterations and quotations omitted).
60 Ideal, 129 F.3d at 151.
61 Martin v. Shaen, 22 Wn.2d at 513.
62 Ideal, 129 F.3d at 152.
63 61 Wn. App 725, 739-40, 812 P.2d 488 (Wn. App. 1991).
64 Id. at 728-30.
65 Id. 729-31, 39 (quoting letter by SDG’s attorney).
66 Seattle NW Sec., 61 Wn. App. 731.
67 Id.
68 Id. at 739.
69 Id. at 739-40.
70 197 F.3d 200, 206-07 (5th Cir. 1999).
71 856 F.2d 619 (4th Cir. 1988).
72 Martin Marietta, 856 F.2d at 623.
73 430 A.2d 262 (N.J. 1981).
74 Sicpa, 430 A.2d at 265.
75 See id.
76 State Farm, 13 P.3d at 1182.
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