Risk Management Tip: Waivers of Attorney-Client Privilege Cannot be Undone

By Jennifer Becker

Last month, this column examined Sanford Walder’s trial victory over his former employer, Bio-Rad.

The district court allowed Wadler to offensively employ material Bio-Rad claimed was protected by attorney-client privilege. Federal Rule of Civil Procedure 502, premised on Model Rule 1.6, is not as stringent as California law in guarding the privilege, and requires balancing the protection of information with the policies behind the rights being enforced, such as protection of whistleblowers.
The court’s analysis included examination of waiver. Express waiver occurs once documents have been turned over to another party voluntarily; implied waiver occurs when a client puts the lawyer’s performance at issue during the course of litigation.

Under federal law, courts narrowly construe privilege to serve its purposes. The party asserting privilege must show it has not been waived. United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). By contrast, California Evidence Code § 912 puts the burden on the party claiming waiver. Roman Catholic Archbishop of Los Angeles v. Superior Court 131 Cal.App.4th 417.

The court determined Bio-Rad had engaged in multiple acts of express waiver. Bio-Rad shared attorney-client confidences with governmental agencies; it allowed Walder to file a complaint disclosing attorney-client confidences; and it included attorney-client confidences in its own public filings.

In responding to Wadler’s Federal Corrupt Practices Act allegations before several federal agencies, Bio-Rad liberally used the substance of attorney-client communications. The district court rejected Bio-Rad’s argument its disclosures to federal agencies were not a waiver because they were compelled. In re Pacific Pictures Corp., 679 F.3d 1121 (9th Cir. 2012) held voluntary disclosures of privileged materials in government proceedings waive the privilege; there is no rule of “selective disclosure.” Id. at 1128.

Bio-Rad permitted Wadler to file a complaint mirroring his Department of Labor (DOL) complaint. It had complained Wadler had disclosed privileged communications to the DOL, but took no action when Wadler’s attorney alerted Bio-Rad that Wadler intended to file a similar complaint in district court. In addition, Bio-Rad filed expert reports that repeatedly referenced and quoted privileged material.

The disclosures to government agencies, the assent to Walder’s public filing of his wrongful termination complaint, and its own filing of expert reports were all express waivers of attorney-client privilege.

Next month: Beware of the broad subject matter waiver of attorney-client privilege.

Author bio:

Jennifer Becker is certified by the State Bar of California, Board of Legal Specialization in Legal Malpractice, and is chair of BASF’s Legal Malpractice Section.  She is a partner at Long & Levit, and the Editor-in-Chief of Long & Levit’s Lawyers and Judge’s Blog, www.longlevit.com/blog/, which is searchable by topic and case name.