Who Can Waive a Municipality’s Privilege? Police Chief Is Sufficiently Senior to Do So — His Extrajudicial Disclosure to Press Effects Waiver, But Scope of Waiver Is Modest — Partial vs Selective Waiver

From Sullivan v. Warminster Township, 2011 U.S. Dist. LEXIS 22379 (E.D. Pa. Mar. 4, 2011):

With regard to the question of whether Chief Murphy could waive the attorney-client and the work-product privilege in the first place, neither Plaintiffs nor the Warminster Defendants have addressed the issue of who in a municipal corporation can waive these privileges. Interestingly, many courts gloss over the issue as well. See 24 Charles Alan Wright et al. § 5487 (expressing surprise at how infrequently the issue of who in a corporation can waive the privilege has been addressed in the case law). Thus, there is a dearth of case law analyzing which employees in a municipal corporation can waive the attorney-client privilege. The Supreme Court has observed in dictum that "the power to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors." Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348-49, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985) (noting parties' agreement to this principle but appearing to offer no opinion on behalf of the Court). However, Weintraub did not expressly limit the ability to waive the attorney-client or work-product privilege to officers and directors. See Denney v. Jenkins & Gilchrist, 362 F. Supp. 2d 407, 413 (S.D.N.Y. 2004) (noting that Weintraub held that a bankruptcy trustee has authority to waive attorney-client privilege on behalf of corporate debtor).

In the instant case we need not address exactly who in a municipal corporation can waive the attorney-client and work-product privileges on behalf of a municipality. We are satisfied that as the head of the Warminster Police Department, Chief Murphy's position is sufficiently managerial to justify the conclusion that he has authority to waive these privileges on behalf of the municipality.

In support of their contention that the Warminster Defendants have waived the attorney-client and work-product privileges, Plaintiffs attach an article from the Bucks County Courier Times entitled, "2nd Opinion: Fatal Shooting Justified." ... The article discloses that this opinion was rendered by "a practicing attorney and retired police lieutenant whom Warminster Police Chief Michael Murphy would not identify." ... Chief Murphy informed the press that Boyle's decision was "based on reports of the shooting given to him by township police, physical evidence, a computer-generated re-enactment and interviews with the involved officers." ... Chief Murphy did not give the press access to these materials.

The disclosure to the media by Chief Murphy constitutes a partial disclosure of information that would otherwise be protected by the work-product and attorney-client privileges. Such disclosures waive the privileges as to the information that is actually disclosed. Westinghouse Elec. Corp., 951 F.2d at 1426 n.12. Thus, the privileges have been waived as to Boyle's communication to Warrington Township and Chief Murphy that the shooting of Sean Sullivan was justified. Under Westinghouse, however, "[w]hen a party discloses a portion of otherwise privileged materials while withholding the rest, the privilege is waived only as to those communications actually disclosed, unless a partial waiver would be unfair to the party's adversary." Id. (citing In re Von Bulow, 828 F.2d 94 (2d Cir. 1987)); see also In re Teleglobe Comm. Corp., 493 F.3d 345, 378 (3d Cir. 2007) ("[A] party is only forced to produce documents under a prospective waiver theory if it agrees to disclose only favorable privileged documents while keeping for itself the unfavorable ones to gain an advantage in litigation." (citing Westinghouse Elec. Corp., 951 F.2d at 1426 n.12)).

Footnote 2 Partial disclosure should not be confused with selective disclosure. Partial disclosure occurs when a litigant discloses a portion of a privileged communication while invoking a privilege as to the remainder of the communication. Selective disclosure occurs when a party discloses information to one party (often the government) but invokes a privilege to prevent disclosure of the same information to other parties. ***

A review of the case law reveals a distinction between partial waivers that occur within the context of judicial proceedings, and extrajudicial partial waivers. Courts are far more likely to find an implied waiver of the privilege where a party waives the privilege in order to introduce a small portion of a body of information in a judicial proceeding while maintaining the privilege for the rest of the information. *** Courts generally hold that disclosures that occur outside the context of a judicial proceeding do not implicitly waive the privilege as to all communications on the same subject matter. ***

We conclude that Chief Murphy's disclosure, which was made before Plaintiffs filed the instant lawsuit, does not effect an implied waiver of the attorney-client and work-product privileges for the remainder of Boyle's report. We do not perceive any prejudice or unfairness to Plaintiffs resulting from Chief Murphy's extrajudicial disclosure. Plaintiffs are entitled to cross- examine witnesses at trial as to the underlying facts of the action, and Plaintiffs have taken numerous depositions of these witnesses as well. An implied waiver of the privilege for Boyle's report is therefore inappropriate.

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