Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But some courts find a subject matter waiver in broader circumstances.

Privilege

Thomas E. Spahn | McGuireWoods LLP

In his previous Privilege Point, McGuireWoods partner Thomas Spahn described a decision applying the subject matter waiver doctrine, which relies on fairness notions to prevent litigants from relying on privileged communications as a "sword" while simultaneously using the privilege as a "shield." Here, he picks up where he left off.

Privilege

Thomas E. Spahn | McGuireWoods LLP

Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a "shield" to prevent discovery of related communications. As with many privilege concepts, applying the subject matter waiver doctrine can involve subtle analyses.