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Data Law: How 'At Issue' Waiver Can Sink Attorney-Client Privilege Claims

David Horrigan

After taking civil procedure in the first year of law school, most students can tell you that Fed. R. Civ. P. 26(b)(1) allows parties to obtain discovery on any relevant, proportional, and nonprivileged matter. If you can get discovery on only nonprivileged information, it stands to reason that if something is protected by the attorney-client privilege, it’s not discoverable.


Not really. As we discussed in the 2016 article “Great Moments in Blowing the Attorney-Client Privilege,” waiver of the attorney-client privilege and the protections of the work product doctrine is a constant threat.

Although some waivers, such as inadvertent disclosure, are familiar to most lawyers and paralegals, the “at issue” waiver is less common.

What happens when you place the privileged information at issue in the case?

In a recent case, Sow v. James River Ins. Co., No. 9:19-cv-81065 (S.D. Fla. Mar. 20, 2020), US Magistrate Judge William Matthewman (S.D. Fla.), a member of the Relativity Fest Judicial Panel, noted the “unusual nature” of the dispute.

It’s the story of what can happen when you subpoena your former lawyers for your file—and then make allegations about those former lawyers in a lawsuit—putting the privileged documents into play.

Car Crash Docs

Amadou Sow was in an automobile accident on March 13, 2016, and he retained Fenstersheib Law Group PA, to represent him. The Fenstersheib firm represented Sow in the matter for three years, but Sow discharged the firm in 2019, and retained Goldman & Daszkal PA to represent him.

If this were a normal case, at this point in our story, Sow would simply ask the Fenstersheib firm to send his file to Goldman & Daszkal, and—in the spirit of cooperation we all strive to have as members of the bar—Fensterscheib would send the file merrily along.

However, Judge Matthewman told us about the unusual nature of this dispute.

Instead of merely asking the old firm to send his file to his new firm, after Sow filed suit, he, through his new counsel, served a non-party subpoena on Fenstersheib Law Group, requesting all documents in the Fensterscheib firm’s possession related to its prior representation of Sow.

Perhaps Sow was forced to file a subpoena because the Fensterscheib firm didn’t turn over the discovery until Sow filed a motion to compel and Judge Matthewman issued an order to show cause.

Here’s where things get interesting.

Sharing is Caring?

Should Sow be forced to share the documents with the defendant, James River Insurance Company—even the privileged ones?

James River argued it, too, should get its hands on the documents, in part, because of the manner in which Sow went about getting them.

You’ll recall that—instead of asking for his file to be transferred from his old lawyers to his new lawyers—Sow issued a subpoena to his former lawyers. Thus, James River argued that it, too, was entitled to the documents pursuant to US District Court for the Southern District of Florida Local Rule 26.1(i).

Under Rule 26.1(i), James River sought full copies of all the Fensterscheib documents. By filing the subpoena, Sow triggered Local Rule 26.1(i)’s requirement that Sow provide James River with a copy of the requested documents “in the same form or format” as those he received.

Initially, Sow objected to James River’s request, but then produced some of the documents and provided a privilege log for documents withheld pursuant to the attorney-client privilege and the work product doctrine.

James River filed a notice of deposition duces tecum. The “duces tecum” basically means “come to your deposition with stuff”—in this case, all the Fensterscheib documents. Both Sow and Fensterscheib objected, arguing the subpoena sought privileged information and that Sow had not waived that privilege.

In an apparent case of first impression, Judge Matthewman rejected James River’s argument.

“[R]equiring Plaintiff to comply with Local Rule 26.1(i) would be putting form over substance and result in the evisceration of Plaintiff’s attorney-client privilege and work product protections,” Judge Matthewman wrote, adding, “This is not the typical case where a party subpoenas a true non-party and is then required by Local Rule 26.1(i) to provide those documents to the opposing party. Rather, this is a case where Plaintiff subpoenaed his own privileged documents from his prior attorney.”

However, our story does not end there. Rule 26.1(i) was only one of James River’s arguments.

The ‘At Issue’ Waiver

Citing Sun Capital Partners v. Twin City Fire Ins. Co., No. 12-81397 (S.D. Fla. Apr. 22, 2015), the court noted that a party can waive attorney-client privilege and work product protections over the documents “by placing the documents ‘at issue’ in the litigation.”

James River argued Sow waived all privileges because he made the communications “at issue” when he alleged that he never authorized anyone from the Fenstersheib firm to settle his claim against James River, and that the Fenstersheib firm failed to consult and confer with him regarding settlement talks.

Judge Matthewman cited Stern v. O’Quinn, 253 F.R.D. 663 (S.D. Fla. 2008) and noted that “at issue” waiver of the attorney-client privilege requires:

(1) an “assertion of the protection” that “results from some affirmative act by the party invoking the protection”;

(2) the affirmative act must “put the protected information at issue by making it relevant to the case”; and

(3) “application of the protection would deny the opposing party access to information vital to its defense.”

The court held—and the parties agreed—that the documents were protected by the attorney-client privilege and the work product doctrine. However, the court held also that Sow placed the withheld documents at issue in the case and that James River had established a substantial need for the documents and hardship if it didn’t get them. Thus, Judge Matthewman held Sow waived the privilege and ordered him to produce the documents.

Why Sow Matters

As we noted above, Federal Rule of Civil Procedure 26(b)(1) permits discovery of only nonprivileged information. However, the rule is not absolute.

Courts sometimes order parties to produce privileged information, and Sow is one of those times. Judge Matthewman is a sophisticated jurist who “gets” e-discovery, and he doesn’t take waiver of the attorney-client privilege lightly.

Those of us who work in e-discovery law have a healthy respect for the danger of obsession over waiver of the attorney-client privilege through inadvertent disclosure. Federal Rules of Evidence 502(b) and 502(d) are the direct result of this concern of privilege waiver in a digital era when terabytes of data are being produced.

However, a major takeaway of Sow is that we should all remember inadvertent disclosure isn’t the only way to waive privilege. Beware of the at issue waiver.

Of course, another takeaway is that—if you can—you should really just ask your lawyers to forward your file when you get new lawyers.

Subpoenaing your lawyer can have unintended consequences.

Learn About the Latest Case Law in our 2019 Data Discovery Year in Review

David Horrigan is Relativity’s discovery counsel and legal education director. An attorney, award-winning journalist, law school guest lecturer, and former e-discovery industry analyst, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. The author and co-author of law review articles as well as the annual Data Discovery Legal Year in Review, David is a frequent contributor to Legaltech News, and he was First Runner-Up for Best Legal Analysis in the LexBlog Excellence Awards. His articles have appeared also in The American Lawyer, Corporate Counsel, The New York Law Journal, Texas Lawyer, The Washington Examiner, and others, and he has been cited by media, including American Public Media’s Marketplace, TechRepublic, and The Wall Street Journal. David serves on the Global Advisory Board of ACEDS, the Planning Committee of the University of Florida E-Discovery Conference, and the Resource Board of the National Association of Women Judges. David is licensed to practice law in the District of Columbia, and he is an IAPP Certified Information Privacy Professional/US.

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