Inadvertent Waiver Cannot Effect a Subject Matter Waiver under Rule 502 — State Law Governs Privilege in Diversity Case but Federal Law Determines Waiver

From Seyler v. T-Sys. N. Am., Inc., 2011 U.S. Dist. LEXIS 6065 (S.D.N.Y. Jan. 20, 2011):

On December 14, 2009, the plaintiff filed suit against T-Systems, her former employer, and Mihallik, her former manager, *** alleging state-law claims of a hostile work environment, retaliation, and intentional infliction of emotional distress. ***

During the course of discovery in the District Court, the plaintiff turned over an email exchange between her and her sister, who is a lawyer with a New York law firm. *** The defendants subsequently issued a subpoena to the law firm for "all documents or electronically stored information sent to, received from, or exchanged amongst Patricia Seyler and Julie B. Seyler" regarding ten different topics related to the lawsuit.*** After the law firm objected to producing the documents on the ground that the documents were protected by the attorney-client privilege, the defendants filed a motion in this Court to compel responses to the subpoena.***

The parties agree that New York law controls the application of attorney-client privilege in this case.***

The defendants argue that the disclosed email, and by extension the entire correspondence with the plaintiff's sister's law firm, was "personal in nature," and that the plaintiff "simply called her sister for familial advice." *** In addition to the content of the email and the fact of the familial relationship, they point to the fact that the plaintiff's sister's area of expertise was patent law, and to the plaintiff's deposition testimony that she was not "working with a lawyer" and had not "retained a lawyer" at the time of the internal claim [i.e., filed with her employer].***

These contentions are unavailing. The email from the plaintiff's sister contained precisely the sort of advice a lawyer might give in advising a client who is drafting correspondence for a later litigation record. The fact that the plaintiff's sister was a family member and a patent lawyer is not controlling, particularly given the fact that other lawyers from her firm, who may have had more relevant expertise, were brought into the discussion. ***

The defendants next argue that the plaintiff waived any claim of privilege by producing the email between her and her sister during discovery while the case proceeded in the District Court for the District of New Jersey. Unlike the scope of the privilege, the waiver question is governed by Federal Rule of Evidence 502(a), which applies when a "disclosure is made in a Federal proceeding." Under Rule 502(a), attorney-client privilege is only waived as to undisclosed communications if "(1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together." Fed. R. Evid. 502(a).

The Advisory Committee Note makes clear the narrow scope of this intentional waiver provision:

. . . [S]ubject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner.

***[S]ee also Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480, 503 (2009) ("By requiring the waiver to be intentional, Congress made it clear that a subject-matter waiver cannot result from an inadvertent disclosure. And, by requiring a fairness analysis, Congress recognized that '[t]here is no bright line test for determining what constitutes the subject matter of a waiver, rather courts weigh the circumstances of the disclosure, the nature of the legal advice sought and the prejudice to the parties of permitting or prohibiting further disclosures.'" (quoting Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005))).

There is no evidence pointing to the conclusion that the plaintiff intentionally waived her attorney-client privilege in disclosing the single email produced during discovery or in discussing that email during her deposition. The Court credits plaintiff's counsel's sworn statement that he did not at the time know that the plaintiff's sister was a lawyer. *** Although this evidence might be sufficient to establish that the disclosure of the email was not "inadvertent" for the purposes of Rule 502(b), and that the plaintiff has therefore waived her privilege as to that single email (a question not before the Court), it does not satisfy the higher standard of intentional waiver in Rule 502(a).

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