Attorney-Client Privilege: Waiver (Federal)
A Practice Note examining when a federal court may find that an individual or entity waived the attorney-client privilege. This Note discusses who holds the authority to waive the privilege before exploring the circumstances that may lead to an express waiver, such as the intentional disclosure of privileged communications during litigation or an unintentional, inadvertent disclosure. This Note also analyzes how a party may impliedly waive the privilege by relying on an "advice of counsel" defense or using protected documents to refresh a witness's recollection. It explains how courts determine the scope of any waiver, including the potential for a broad subject matter waiver that extends to undisclosed communications. This Note also outlines proactive measures parties can take to mitigate waiver risks, such as entering into agreements or seeking a court order under FRE 502(d).
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