Publications: Fairness and the Doctrine of Subject Matter Waiver of the Attorney-Client Privilege in Extrajudicial Disclosure Situations

*The copyright to the University of Illinois Law Review is held by the Board of Trustees of the University of Illinois. 

Introduction 

In 1982, after a six-week trial, a Rhode Island Superior Court found Claus von Bulow guilty of attempting to murder his wife, Martha.[1] Subsequently, the Rhode Island Supreme Court reversed von Bulow’s conviction and ordered a new trial.[2] In 1985, after a highly publicized second trial, a jury acquitted von Bulow.[3]

Following the second trial, Martha’s children, by a previous marriage, brought a federal civil action against von Bulow for assault, negligence, fraud, and RICO violations.[4] On their mother’s behalf, the children sought damages and equitable relief.[5]

In 1986, von Bulow’s appellate lawyer, Alan Dershowitz, published a book entitled Reversal of Fortune: Inside the von Bulow Case (Reversal of Fortune). In the book, Dershowitz states that his independent investigations and conversations with von Bulow convinced the lawyer his client was innocent.[6] Reversal of Fortune contains excerpts of private discussions between Dershowitz and von Bulow concerning von Bulow’s application for bail, the appeal strategy, and the debate concerning whether von Bulow should testify in his own defense.[7]

Dershowitz’s book had implications for the civil suit against von Bulow. Because von Bulow allowed Dershowitz to publish a book that included confidential attorney-client communications, the federal district court handling the civil suit concluded the children could demand discovery of other related but undisclosed confidential communications.[8] Finding that the district court erred, the Second Circuit reversed.[9] Because the book’s disclosures did not affect the civil suit, the Second Circuit ruled the children could not discover the related but undisclosed confidential conversations between von Bulow and Dershowitz.[10]

The von Bulow case illustrates the problems courts have when applying the doctrine of waiver of the attorney-client privilege. Courts and commentators have long agreed that litigants cannot use the attorney-client privilege as both a “sword” and a “shield.”[11] Courts, therefore, do not allow litigants to disclose privileged confidential communications favorable to their cause and then use the attorney-client privilege to protect damaging confidential communications.[12] Thus, when a litigant has partially disclosed a privileged communication, courts have found fairness requires the litigant to disclose either the entire communication or enough to prevent the litigant from misleading an adversary or the court.[13] However, courts should carefully examine the facts surrounding a partial disclosure of attorney-client confidences to determine if the disclosure actually misleads either an adversary or the trier of fact.

First examining the nature of the attorney-client privilege and the concept of waiver, this note explores the justifications that courts use to support the privilege and then considers the concepts of voluntary and involuntary waiver of the attorney-client privilege.

The note also analyzes the factors that courts apparently consider when determining whether a litigant’s extrajudicial[14] partial disclosure of a privileged communication requires the litigant to disclose the entire communication or all communications relating to the subject matter area. Commentators recognize that waiver is one way in which courts may limit the application of the attorney-client privilege.[15] The judiciary is generally hostile toward any evidentiary privilege that excludes relevant evidence,[16] and many courts, without considering whether an actual advantage has been gained, will find a party has waived the attorney-client privilege as to all communications when the party partially disclosed confidential communications.[17]

The note will examine the doctrine of fairness that courts should apply when deciding whether a litigant’s partial disclosure of privileged communications waives the attorney-client privilege as to all related confidential communications. This note will suggest guidelines that courts should follow when deciding whether a litigant’s partial disclosures of confidential communications prejudices the litigation process and thus requires a waiver of the attorney-client privilege on all related communications. Finally, the note recommends that courts focus on the partial disclosure’s effect on the litigation and concludes that courts should find a litigant has waived the attorney-client privilege as to undisclosed confidential communications only when a litigant’s partial disclosure has actually prejudiced the outcome of the litigation by reaching the trier of fact.

I. The Attorney-Client Privilege

A. Scope of the Attorney-Client Privilege

Today, federal courts and all other jurisdictions in the United States[18] recognize that the attorney-client privilege[19] protects the private communications between clients and their attorneys, made while the clients seek legal advice.[20] The attorney-client privilege prevents courts or adversaries from compelling an attorney or client to testify about confidential conversations and documents related to the attorney giving legal advice to the client.[21]

The attorney-client privilege only protects statements that a person makes to an attorney while seeking legal advice.[22] Even if the potential client never actually retains the lawyer, the attorney-client privilege protects statements the client made when seeking legal advice.[23]

The privilege protects only communications made to actual attorneys or their subordinates.[24] The privilege does not apply when a person seeks legal advice from a law student or any other person who is not a member of the bar.[25] Further, the privilege applies only when attorneys receive communications in their role as lawyers, not as friends or business advisers.[26]

In addition, a person must communicate with an attorney in confidence, without persons not connected to the law firm present[27] and while seeking legitimate legal advice.[28] Courts do not allow clients to claim privilege protection if the client sought advice to further ongoing or future conduct of criminal or tortious activity.[29] Finally, to claim the privilege, the client, not the attorney, must assert and not somehow waive the privilege.[30]

The party claiming the privilege must establish that all of the essential elements of the privilege exist and cannot merely assert that the privilege protects all of the information sought by an adversary.[31] Instead, clients must demonstrate that the privilege applies on a “question by question or document by document basis.”[32] Also, because the privilege prevents a litigant from fully disclosing relevant information and hinders a court’s search for the truth, courts only apply the privilege to its “narrowest possible limits.”[33] However, when communications satisfy all of the privilege requirements, clients may insist that the attorney-client privilege permanently protect the communications.[34]

By protecting only confidential communications between the attorney and client, the privilege does not prevent an adversary from discovering any underlying facts that independent sources can supply.[35] Clients may not hide facts simply by discussing those facts with their attorneys.[36] Therefore, the attorney-client privilege puts no greater burden on society or an adversary seeking the truth than would occur if the confidential communication never took place at all.[37]

B. Justification

The evidentiary privileges[38] exclude evidence for reasons unrelated to truth seeking.[39] Courts and commentators rely on one of two types of rationales to justify the attorney-client privilege: (1) a utilitarian justification,[40] and (2) a nonutilitarian justification.[41] Although nonutilitarian justifications originally supported the attorney-client privilege, most courts currently rely upon the utilitarian justification to support the privilege.[42]

1. Utilitarian Justification

The utilitarian justification states that, to maintain the attorney-client relationship, courts must recognize the attorney-client privilege.[43] The utilitarian justification assumes that persons who fear a court could compel an attorney to disclose confidential attorney-client communications will either not seek legal advice or will not fully inform their attorneys of the facts involved in the case.[44] When a client withholds relevant information, an attorney cannot give the client fully informed legal advice.

Courts protect confidential attorney-client communications because the courts believe society receives benefits that outweigh the privilege’s detrimental effects on the search for truth.[45] A court following the utilitarian viewpoint believes that society values the attorney-client relationship, and, thus, the relationship should be encouraged.[46]

By allowing attorneys and their clients to discuss legal concerns fully and frankly, the attorney-client privilege promotes the broader public interest of encouraging all individuals to observe the law.[47] Maintaining full disclosure in the attorney-client relationship increases clients’ awareness of the lawful courses of action available to them and allows the attorney to give socially desirable advice.[48] The traditional justification assumes that most people seek legal advice so that they can avoid violating the law.[49] To advise a client properly on lawful courses of action, an attorney needs to know all of the relevant facts that relate to a client’s need for representation.[50]

Some commentators assert that questionable sociological premises underlie the evidentiary privileges.[51] Critics of the utilitarian viewpoint believe that people usually know little about privileges; therefore, privilege law does not change a client’s communicative behavior.[52] If clients would fully inform their attorneys of all facts regardless of the existence of the attorney-client privilege, society does not receive any benefit from the privilege.[53] In upholding the attorney-client privilege, however, most courts continue to cite the utilitarian justification as support for their decisions.[54]

2. Nonutilitarian Justifications

Historians agree that courts originally justified the privilege with nonutilitarian rationales.[55] Commentators asserting a nonutilitarian justification for the privilege believe that forcing lawyers to reveal confidential communications constitutes a wrong in itself.[56] Confidential communications are privileged because compelling disclosure would violate a client’s privacy rights[57] or would breach the attorney’s implicit promise of loyalty to the client.[58] In fact, in its original form, the attorney-client privilege did not exempt clients from testifying concerning their confidential communications with an attorney.[59] Because modern courts recognize that the client, instead of the attorney, controls the attorney-client privilege,[60] the “breach of loyalty” justification is no longer valid. An attorney cannot reveal attorney-client communications unless the client[61] actually or impliedly waives the protection offered by the privilege.[62]

Justifying the attorney-client privilege as protecting a client’s privacy or other constitutional rights also does not explain why the attorney-client privilege extends to most clients.[63] For example, nothing in the United States Constitution suggests that litigants in civil cases are entitled to the protection offered by the attorney-client privilege.[64] However, a constitutional right theory does explain why the attorney-client privilege should extend to criminal defendants. If the government could compel defense attorneys to testify in criminal cases as to the content of attorney-client communications, criminal defendants would have to choose between their constitutional right to effective assistance of counsel[65] and their constitutional right against self-incrimination.[66]

Regardless of the proper justifications for the attorney-client privilege, courts and commentators agree that the courts and legislatures will not eliminate the privilege.[67] Therefore, issues concerning the scope of the privilege and waiver of the privilege, rather than the existence of the privilege itself, remain controversial.

Clients may waive the attorney-client privilege under either the utilitarian or nonutilitarian rationales by actually disclosing confidential communications to third parties. However, the justifications do not address situations where a client, by disclosing some confidential attorney-client communications, also waives the privilege for previously undisclosed confidential attorney-client communications.

II. Waiver

Courts recognize that individuals may waive important rights and privileges. Litigants can waive constitutional rights[68] as well as evidentiary privileges, such as the attorney-client privilege.[69] Depending on whether a constitutional right or an evidentiary privilege is involved, however, courts apply different standards in determining whether a client has waived the applicable protection.

In cases involving waiver of the fifth amendment right against self-incrimination, courts apply the Johnson v. Zerbst[70] standard requiring that the defendant intentionally waive a known right or privilege.[71] A litigant must knowingly intend to give up the protection of a constitutional right. In contrast, without even realizing the attorney-client privilege applies, clients may waive its protection. To discover if a client has waived the privilege, courts examine the nature of the disclosure and not the privilege holder’s intent.[72] Courts hold that clients who voluntarily disclose confidential attorney-client communications to third parties actually waive the privilege because the clients have indicated that they do not want the communication to remain private. By destroying the confidentiality underlying the attorney-client privilege, the client loses the privilege’s protection.[73]

However, in other situations, fairness concerns mandate that courts find a client has impliedly waived the attorney-client privilege as to undisclosed confidential communications. Courts will not let litigants abuse the attorney-client privilege by using the privilege to do more than just shield confidential communications. Therefore, courts will imply a waiver when clients make confidential communications an issue in litigation or when clients selectively or strategically disclose confidential communications.

A. Actual Waiver

Actual waiver occurs when a client discloses confidential communications to a party outside the attorney-client relationship.[74] Courts refuse to protect attorney-client communications when a client has disclosed the confidential communication to a third person.[75] After disclosure to a third party, courts find that the “cat is let out of the bag, so to speak”[76] and courts will not protect a communication that lacks confidentiality.[77]

Commentators have criticized courts for finding actual waiver in cases involving inadvertent or compelled disclosures of privileged communications.[78] These commentators reason that, in situations where the litigant does not seek to “garble the truth,”[79] courts must ignore the loss of confidentiality and find that the client has not waived the privilege.[80]

B. Implied Subject Matter Waiver

In finding an implied subject matter waiver, courts hold that the client has waived the attorney-client privilege as to confidential communications that the client has not actually disclosed to third parties.[81] The doctrine of implied subject matter waiver prevents lawyers and clients from abusing privilege law in two situations:[82] (1) when the confidential communication becomes an issue in litigation,[83] and (2) when litigants selectively or strategically disclose privileged communications.[84] Courts, in these situations, should be concerned with fairness to both litigants and require the party seeking to discover the confidential communications to show unfair prejudice. A party claiming unfair prejudice must show a greater degree of prejudice than generally results whenever an adversary invokes the privilege.

1. Issue Injection

When a party’s claim of reliance on legal advice becomes an issue in the litigation or the client alleges malpractice, courts find a client has impliedly waived the privilege for all confidential information within that subject matter area.[85] For example, courts allow prosecutors to discover criminal defendants’ privileged attorney-client communications when the defendants raise a good faith defense based on advice of counsel.[86]

Courts may also find that a plaintiff has waived the attorney-client privilege by claiming estoppel in response to a statute-of-limitations defense because the attorney-client communications would shed light on the validity of the claim.[87] In Connell v. Bernstein-Macaulay, Inc., for example, the defendants in a securities fraud case moved for summary judgment on the basis of the statute of limitations.[88] The plaintiff claimed that the defendants were not entitled to assert this defense because the defendants had prevailed upon the plaintiffs to delay the suit while they attempted to restore the company’s financial health.[89] The defendants then sought to discover the plaintiffs’ confidential attorney-client communications to determine whether the plaintiffs withheld suit for the reason the plaintiffs now asserted or for some other reason.[90] The court found that the plaintiffs’ claim of estoppel waived the attorney-client privilege because their affirmative act had put the protected information at issue.[91]

Often, attorney-client communications contain the only evidence of the client’s claim of having a certain state of mind. Therefore, courts find the client has impliedly waived the privilege as to attorney-client communications relevant to the client’s state of mind when the client affirmatively makes her state of mind an issue in litigation.[92]

2. Selective/Strategic Disclosure

Courts also find subject matter waiver to prevent a litigant from distorting the truth by selectively or strategically disclosing confidential attorney-client communications.[93] The district court in von Bulow[94] and many others[95] hold that clients who partially disclose privileged communications for their own benefit have waived privilege protection for all related communications. For example, in Reversal of Fortune, Dershowitz declares von Bulow’s innocence based on the content of privileged attorney-client communications.[96] If a court finds that a litigant has misused the attorney-client privilege, the privilege no longer protects an entire category of privileged communications, including those communications never disclosed to a third party, under the doctrine of subject matter waiver.[97]

Courts do not allow the client to pick and choose among privileged communications, disclosing the favorable communications while protecting the unfavorable communications. [98] The unfairness that would result from selective disclosure at trial is apparent. However, when the selective disclosure is not made to the trier of fact, the unfairness is much harder to find.

III. Relationships Between The Rationales Underlying Subject Matter Waiver And Its Application

A. Justifications for the Attorney-Client Privilege Do Not Explain Subject Matter Waiver

Courts, when making subject matter waiver decisions, cannot logically base waiver on the justifications underlying the attorney-client privilege. Neither the utilitarian justifications nor the nonutilitarian justifications provide a principled basis for finding subject matter waiver. Instead, courts must rely on the concept of fairness to justify subject matter waiver.[99]

1. Utilitarian Justification

Courts may use the traditional utilitarian rationales to justify finding that a client has actually waived the attorney-client privilege by disclosing confidential information to a third party. When a client discloses a privileged communication, courts no longer protect the disclosed communication because the courts presume the client would have disclosed the information to the attorney regardless of the protection offered by the privilege.[100] Because the client did not treat the information disclosed as confidential, chances are good that the client would have disclosed the information to his attorney regardless of the existence of the attorney-client privilege. Thus, the disclosed communication is no longer entitled to the protection of the attorney-client privilege.

However, courts may not explain the concept of subject matter waiver by examining the traditional utilitarian justification.[101] An undisclosed portion of any communication must remain confidential because the utilitarian justification presumes the client, absent the protection offered by the privilege, would never have made the initial statement to the attorney. Indeed, absent some type of protection from compelled disclosure, the traditional justification for the attorney-client privilege assumes that a client will not want to disclose certain facts, which the client considers damaging, to an attorney.[102] Courts recognize attorneys should be making judgments concerning what facts are legally relevant to the client’s particular case.[103] A client who only partially discloses attorney-client communications presumably still relied upon the protection of the attorney-client privilege when discussing the undisclosed facts with an attorney.[104] Therefore, the privilege’s underlying justification still exists because some possibly damaging client-attorney communications remain undisclosed.

2. Nonutilitarian Justifications

Nonutilitarian justifications also provide courts a basis for finding actual waiver but do not justify finding subject matter waiver. A client cannot claim privacy rights after voluntarily disclosing a privileged communication to a third party. Once a client exposes certain attorney-client communications to third parties, the client cannot claim this “public” conversation should be excluded on privacy grounds. However, under a privacy rationale, courts may not conclude that, merely by publishing part of a privileged conversation, a client must now publish the entire conversation or all related conversations. Because the undisclosed portion of the conversation and related undisclosed conversations retain their privacy, a court may not find that the client has waived the protection as to those conversations.

B. Fairness

Because the utilitarian and nonutilitarian justifications do not make sense in the context of subject matter waiver, courts use a fairness theory to justify subject matter waiver.[105] Courts recognize that, by suppressing relevant evidence, the attorney-client privilege always burdens a litigant seeking to discover the relevant evidence contained in the privileged communication.[106] Therefore, courts usually find a client has waived the privilege for a specific subject matter when the client acts “unfairly” toward the adverse party.[107] Courts emphasize two types of “unfair” behavior: (1) when the client makes attorney-client communications an issue in the litigation (issue injection) and (2) when a client strategically or selectively discloses attorney-client communications.

1. Issue Injection

Under the fairness doctrine, a court must find subject matter waiver where clients inject their attorney-client communications as an issue in the case. Clients cannot testify that their attorney’s advice caused them to pursue a particular course of action and then use the privilege to prevent an opponent from discovering the actual content of the conversation.[108] A court allowing a party to abuse the privilege in such a way permits a party to give the jury only one side of a factual dispute. Courts and commentators recognize that allowing a client to make privileged communications relevant and then to shield those communications creates unfairness and mandates a finding of subject matter waiver.[109] However, a client’s partial extrajudicial disclosure of attorney-client communications does not involve the fairness considerations that arise in issue injection situations.

2. Strategic or Selective Disclosure

There are three possible ways that extrajudicial disclosure of attorney-client confidences, without subject matter waiver, potentially harms an adversary. Such disclosure may: (1) influence the trier of fact, (2) change an adversary’s view of the case, or (3) prevent discovery to prepare for disclosure at trial. By partially disclosing confidential information, a client does not necessarily create the degree of unfairness that mandates a court to find subject matter waiver. Parties who disclose attorney-client communications outside of the courtroom do not necessarily influence the outcome of the litigation and unfairly harm their opponents.[110] When a client’s extrajudicial disclosures do not reach the trier of fact, these disclosures do not affect the outcome of litigation. Extrajudicial disclosures of confidential attorney-client communications, absent subject matter waiver, can affect an adversary by changing the adversary’s view of the case. Without subject matter waiver, extrajudicial disclosures can frustrate an adversary, who, because of the attorney-client privilege, is barred from conducting the full discovery necessary to prepare for evidentiary use of the disclosed communication at trial. However, courts do not need to apply the doctrine of subject matter waiver to overcome the problems created by extrajudicial disclosure. An analysis of each potential problem reveals that either a less drastic measure can prevent the problem or that the problem does not exist.

a. Influence on Trier of Fact

The district court in von Bulow expressed concern that, by revealing attorney-client communications, von Bulow was attempting to try his case in the media.[111] The Second Circuit ruled, however, that the children had not shown that von Bulow’s disclosures would affect the jury in any way.[112] Courts reach their decisions by hearing evidence and arguments each litigant presents in open court.[113] Outside sources, such as “private talk” or “public print,” presumably are less likely to affect a court’s decision.[114] Where disclosures are widely reported to the public, as in von Bulow, courts can use procedural devices to help assure impartial juries. These procedural devices include: (1) change of venue,[115] (2) continuance,[116] (3) voir dire examination,[117] and (4) judge’s instructions to the jury.[118]

Many courts recognize that an adversary must show actual unfairness before the court will find subject matter waiver.[119] However, courts should also recognize that a party is only prejudiced when partial disclosures actually reach the jury. Although the rules of evidence cannot protect the general public from misinformation, the rules should protect the jury from half-truths. When clients make disclosures in a manner less public than publication in a book or newspaper, these disclosures have virtually no chance of reaching the jury.

b. Changing an Adversary’s View of a Case

When parties partially disclose attorney-client communications, adversaries may rely on these disclosures and change their views of a particular dispute. Because of such disclosures, adversaries may alter their litigation strategy or change their settlement demands. Some courts have recognized that clients, by disclosing privileged assertions, could mislead adversaries and prevent the judicial system from functioning properly.[120] For example, a lawyer may reveal privileged information during settlement negotiation to point out the weakness of an adversary’s position or to demonstrate candor.[121] However, because adversaries should realize that such disclosures are not complete, they should not change their views of the case based merely on opposing parties’ partial disclosures. Thus, the danger that the partial disclosure of attorney-client confidences will actually harm an adversary is minimal.

By revealing previously undisclosed information, a party’s partial disclosures of attorney-client communications can actually benefit an adversary. Even if the disclosed information benefits the disclosing party, an adversary may gain clues about the underlying facts that are not protected by the attorney-client privilege and that the adversary may now uncover and use as evidence. Nye v. Sage Products, Inc.,[122] illustrates a situation where the court found subject matter waiver because some privileged documents were disclosed. In Nye, the plaintiffs in a patent infringement suit produced documents, protected by the attorney-client privilege, pursuant to the defendant’s discovery request without asserting the privilege.[123] After plaintiffs retained new counsel, they asserted the privilege as to certain documents not yet produced.[124] The defendant then moved for an order compelling production of all the requested documents claiming subject matter waiver.[125] The court granted the motion even though the defendant did not point to any actual prejudice.[126] The court, however, did note that the “possibility” of prejudice existed.[127]

The only possible prejudice in Nye was that the defendant might be misled by the partial disclosure. However, the defendant should not allow itself to be misled because it recognized that the disclosures were only partial; any prejudice that resulted from the partial disclosure was the defendant’s fault. Instead of being prejudiced by the partial disclosure, the defendant benefited by getting information that the plaintiff could have shielded from discovery by asserting the attorney-client privilege. Thus, the court’s finding of subject matter waiver represented a windfall for the defendant in Nye.

c. No Discovery to Prepare for Disclosure at Trial

Partial disclosure of attorney-client communications by the client may harm the client’s adversary, if the adversary believes that the client will use the partially disclosed communication as evidence at trial. To prepare fully for a client’s use of the disclosed communication as evidence at trial, the client’s adversary would need to discover fully all the confidential attorney-client communications concerning a subject matter area. Adversaries are unable to do this, however, unless courts find that the client has waived the attorney-client privilege in an entire subject matter area.

The danger that confidential attorney-client communications will be introduced at trial exists regardless of whether the client disclosed the communications before trial. Instead of adopting subject matter waiver and thus allowing discovery of all related privileged communications, courts must use protective measures to prevent clients from introducing attorney-client communications at trial. Courts can and do prevent clients from introducing privileged information at trial unless the clients produce all privileged communications on the same subject matter before the trial.[128]

For example, in International Telephone & Telegraph Co. v. United Telephone Co.,[129] the plaintiff brought a lawsuit claiming antitrust violations and tortious interference with contractual relationships on the part of the defendant.[130] The plaintiff claimed that the defendant filed baseless charges before the Florida Public Service Commission merely to prevent the plaintiff’s execution of a contract.[131] The plaintiff sought to discover privileged documents relating to the defendant’s bringing of the action before the commission,[132] and the defendant raised the protection of the attorney-client privilege.[133] The court found that fairness required a party, who intends to waive the privilege by using privileged material at trial, to “allow discovery with regard to matters material to that testimony.”[134] The court further held that if the defendant did not allow discovery of the privileged communications, the defendant could not introduce the communications as evidence at trial.[135]

Requiring disclosure of privileged communications before they may be introduced at trial allows a litigant to choose whether to waive the attorney-client privilege. An opposing party should not be able to force a waiver of a litigant’s privilege protection simply by claiming that the litigant intends to use privileged communications as evidence at trial.

IV. Courts Should Find Actual Prejudice Should Find Actual Prejudice Before Allowing Subject Matter Waiver

When facing very public extrajudicial disclosure, such as the von Bulow case[136] or other pretrial disclosure situations,[137] courts should examine whether a party disclosing privileged communications has affected the outcome of the litigation. When deciding whether to find subject matter waiver, courts should only hold that a party has waived the privilege for undisclosed communications when a party’s partial disclosure actually prejudices an adversary at trial. By disregarding pretrial disclosures unless an adversary shows actual prejudice, courts could better preserve the justifications for the attorney-client privilege and the subject matter waiver doctrine.

Generally, courts face three situations where a client partially discloses privileged information: (1) disclosure to the general public; (2) disclosure to an adversary, but not to the general public; and (3) disclosure to third parties, but not to an adversary or the general public. Only disclosing information to the general public possibly creates the prejudice necessary for a court to find subject matter waiver.

A. Disclosure to General Public

By partially disclosing privileged communications to the general public, a party, such as von Bulow, could prejudice litigation in the same manner as testimony at trial about confidential communications would prejudice an adversary. A partial disclosure can prejudice an adversary only if it becomes so notorious that a jury could not reach its verdict without considering the partial disclosure. However, because courts can use other procedures, such as voir dire,[138] to prevent public disclosures from influencing a jury, public disclosure should rarely mandate a court to find subject matter waiver. Therefore, courts should require an adversary to show that a party’s partial disclosure caused actual prejudice.

B. Disclosure to Adversary But Not to General Public

A party may also partially disclose privileged communications only to an adversary. By partially disclosing information, parties may mislead adversaries and cause them to change their view of the facts of a case. Partial disclosure to adversaries generally occurs during discovery or settlement negotiations and may possibly cause an adversary not to continue the suit to trial, despite a meritorious claim. However, as adversaries should realize that the disclosure is incomplete, they should not be misled by the disclosure. Courts should realize that courts do not need to shield two potential litigants from exposure to partial disclosures. Litigants, better than juries, can evaluate objectively the truth of partial disclosures. Also, even though partial disclosures generally exculpate the disclosing party, the disclosures may provide clues about the unprotected, underlying facts of the case. Therefore, courts should not apply the doctrine of subject matter waiver to disclosures of confidential attorney-client communications to an adversary.

C. Disclosure to Third Parties But Not to Adversaries or the General Public

A party, making disclosures to third parties unconnected with the litigation, creates the least danger of prejudicing litigation. In such situations, disclosures neither influence the trier of fact nor adversaries. Courts would never allow a potential jury member who is privy to an unpublished partial disclosure to sit on the case.[139] Courts would inevitably consider such a potential juror too close to a party in the case or too influenced by outside communications to sit on the case.[140] Adversaries who do not know a client partially disclosed privileged communications cannot claim that they have been misled. Therefore, courts should never use the doctrine of subject matter waiver in cases where a party partially discloses to a third party but does not disclose to the general public or an adversary.

Conclusion

Parties involved in litigation often disclose privileged communications in pretrial and extrajudicial settings. Parties make such disclosures inadvertently or knowingly for many different reasons. Because the confidentiality underlying the privilege no longer exists, courts properly strip actual disclosures of privilege protection. However, courts generally should not strip related but undisclosed communications of privilege protection. Courts should only invoke the doctrine of subject matter waiver when a party, by disclosing confidential attorney-client communications, unfairly and actually prejudices an adversary.
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[1] State v. von Bulow, 475 A.2d 995, 999 (R.I. 1984).

[2] Id. At 1021.

[3] See A. Dershowitz, Reversal of Fortune: Inside The von Bulow Case 237 (1986).

[4] See von Bulow by Auersperg v. von Bulow, 114 F.R.D. 71, 73-75 (S.D.N.Y. 1987).

[5] See id.

[6] Id. at 73.

[7] See id. at 80-83 (listing subject matter areas in which book’s disclosures waived the attorney-client privilege).

[8] See id. at 80.

[9] In re von Bulow, 828 F.2d 94, 104 (2d Cir. 1987).

[10] Id.

[11] See 8 J. Wigmore, Evidence in Trials at Common Law § 2327, at 636 (McNaughton rev. ed. 1961).

[12] Teachers Ins. & Annuity Ass’n of Am. v. Shamrock Broadcasting Co., 521 F. Supp. 638 (S.D.N.Y. 1981).

[13] See, e.g., First Fed. Sav. & Loan v. Oppenheim, Appel, Dixon, 110 F.R.D. 557, 567 (S.D.N.Y. 1986); Drimmer v. Appleton, 628 F. Supp. 1249, 1252 (S.D.N.Y. 1986).

[14] As used in this note, extrajudicial disclosure means any statement or document that is published outside the presence of the trier of fact.

[15] See Note, When Does a Limited Waiver of the Attorney-Client Privilege Occur, 24 B.C.L. Rev. 1283, 1291 (1983).

[16] See Marcus, The Peril of Privilege: Waiver and the Litigator, 84 Mich. L. Rev. 1605, 1605 (1986) (“American law has set its head against [privileges] since the mid-nineteenth centure.”); see also United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) (citing the proposition that privilege “ought to be strictly construed within the narrowest possible limits consistent with its principal”); Radiant Burners, Inc. v. American Gas Ass’n, 320 F.2d 314, 323 (7th Cir. 1963) (same); McArthur v. Robinson, 98 F.R.D. 672, 674 (E.D. Ark. 1983) (same).

[17] See, e.g., In re Consol. Litig. Concerning Int’l Harvester’s Disposition of Wis. Steel, 666 F. Supp. 1148, 1153 (N.D. Ill. 1987); Nye v. Sage Prods., 98 F.R.D. 452, 453 (N.D. Ill. 1982); Detection Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 156 (W.D.N.Y. 1982); B&J Mfg. Co. v. FMC Corp., 21 Fed. R. Serv. 2d (Callaghan) 1119, 1120 & n.1 (N.D. Ill. 1975).

[18] 3 B. Jones, Evidence § 21:8 (Gard 6th ed. 1972).

[19] Legal scholars trace the common law history of the attorney-client privilege to the reign of Elizabeth I. 8 J. Wigmore, supra note 11, § 2290, at 542. The attorney-client privilege also existed in the Roman law. See Radin, The Privilege of Confidential Communication Between Lawyer and Client, 16 Calif. L. Rev. 487, 488 (1928).

[20] Fisher v. United States, 425 U.S. 391, 403 (1976). Federal courts use either Wigmore’s or Judge Wyzanski’s formulation of the attorney-client privilege.

The Wigmore formulation states: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection may be waived. 8 J. Wigmore, supra note 11, § 2292, at 554.

Judge Wyzanski’s formulation states: The privileges applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was formed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).

[21] 2 D. Louisell & C. Mueller, Federal Evidence § 209, at 734 (1985).

[22] United States v. Flores, 628 F.2d 521, 526 (9th Cir. 1980).

[23] Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317, 1319 (7th Cir.), cert. Denied, 439 U.S. 955 (1978).

[24] United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).

[25] 8 J. WIGMORE, supra note 11, § 2300, at 580.

[26] See, eg., In re Grand Jury Proceedings (Doe), 575 F. Supp. 197, 203 (N.D. Ohio 1983); C. MCCORMICK, MCCORMICK’s HANDBOOK OF THE LAW OF EVIDENCE § 88, at 179 (2d ed. 1972).

[27] Courts recognize that the attorney-client privilege protects confidential statements made to an attorney’s subordinate. See United Shoe Mach. Corp., 89 F. Supp. at 358.

[28] Id.

[29] See In re Sealed Case (Synanon Church), 754 F.2d 395, 399, 402 (D.C. Cir. 1985).

[30] See United Shoe Mach. Corp., 89 F. Supp. at 358-59.

[31] See United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983).

[32] Id.

[33] 8 J. WIGMORE, supra note 11, § 2291, at 554.

[34] Id. § 2292, at 554.

[35] Upjohn v. United States, 449 U.S. 383, 395-96 (1981).

[36] Id.

[37] Id.

[38] The Proposed Federal Rules of Evidence, 56 F.R.D. 183 (1972), which sought to codify federal common law, recognized nine different privileges:

1. Required reports privileged by statute, id. at 234-35;

2. Lawyer-client, id. at 235-40;

3. Psychotherapist-patient privilege, id. at 240-44;

4. Husband-wife, id. at 244-47;

5. Communications to clergymen, id. at 247-49;

6. Political vote, id. at 249;

7. Trade secrets, id. at 249-51;

8. Secrets of state and other official information, id. at 251-54; and

9. Identity of informer, id. at 255-58.

[39] See E. GREEN & C. NESSON, PROBLEMS, CASES AND MATERIALS ON EVIDENCE 519 (1983).

Other exceptions to the general rule that all relevant evidence is admissible are justified largely on grounds of unreliability, prejudice, or jury confusion. Id.

[40] See 8 J. WIGMORE, supra note 11, § 2285, at 527; see also Upjohn Co. v. United States, 449 U.S. 383 (1981); Fisher v. United States, 425 U.S. 391, 403 (1976); United States v. Buckley, 586 F.2d 498, 502-03 (5th Cir.), cert. denied, 440 U.S. 982 (1978).

[41] See Krattenmaker, Testimonial Privilege in Federal Courts: An Alternative to the Proposed Federal Rules of Evidence, 62 GEO. L.J. 61, 85-94 (discussing the privacy rationale).

[42] Developments in the Law-Privileged Communications, 98 HARV. L. REV. 1450, 1502 (1985) [hereinafter Developments in the Law].

[43] See 8 J. WIGMORE, supra note 11, § 2285, at 527.

[44] See 2 D. LOUISELL & C. MUELLER, supra note 21, § 208, at 73 1.

[45] See 8 J. WIGMORE, supra note 11, § 2285, at 527 (setting out four conditions that must be present to justify establishing a privilege):

1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

[46] See Developments in the Law, supra note 42, at 1501.

[47] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

[48] Freedman, Lawyer-Client Confidences: The Model Rules Radical Assault on Tradition, 68 A.B.A. J. 428, 429 (1982).

[49] In United States v. Gordon-Nikkar, 518 F.2d 972, 975 (5th Cir. 1975), the court stated that the policy underlying the attorney-client privilege is to “promote the administration of justice.” Therefore, the privilege does not shield communications concerning an intended crime. Id.

[50] See Trammel v. United States, 445 U.S. 40, 51 (1980); see also Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (Privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.”).

[51] See, eg., Morgan, Some Observations Concerning a Model Code of Evidence, 89 U. PA. L. REV. 145, 150‑51 (1940).

[52] See Developments in the Law, supra note 42, at 1501‑09.

[53] Commentators are unsure whether the privilege encourages persons to seek legal advice. See, eg., Louisell, Confidentiality, Conformity, and Confusion: Privileges in Federal Court Today, 31 TUL. L. REV. 101, 112 (1956); Popkin, Client-Lawyer Confidentiality, 59 TEX. L. REV. 755, 767 n.91 (1981).

[54] See, eg., Upjohn v. United States, 449 U.S. 383, 389 (1980); Garner v. Wolfinbarger, 430 F.2d 1093, 1100‑04 (5th Cir. 1970).

[55] See Developments in the Law, supra note 42, at 1502.

[56] See, eg., 23 C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5422, at 670-71 (1980); Developments in the Law, supra note 42, at 1501-09 (discussing the two basic justifications for attorney-client privilege and demonstrating how they might be integrated).

[57] See Gardner, A Re-evaluation of the Attorney-Client Privilege (pts. 1 & 2), 8 VILL. L. REV. 279, 447 (1963); Louisell, supra note 53.

[58] Developments in the Law, supra note 42, at 1502.

[59] See 8 J. WIGMORE, supra note 11, § 2290, at 544.

[60] Note, Limited Waiver, 130 U. PA. L. REV. 1198, 1202 (1982).

[61] Courts have found a client’s failure to object to an attorney’s actions constitutes a client’s waiver of the attorney-client privilege. See von Bulow by Auersperg v. von Bulow, 114 F.R.D. 71, 77 (S.D.N.Y. 1987) (encouraging attorney to publish book containing confidential communications constituted waiver by client); Drimmer v. Appleton, 628 F. Supp. 1249, 1252 (S.D.N.Y. 1986) (sitting in passive silence while attorney testified to confidential communications constituted waiver by client). While the attorneys in von Bulow and Drimmer took positive steps, the courts clearly state that the client’s inaction affected the waiver.

[62] See 8 J. WIGMORE, supra note 11, § 2292, at 554 (stating that confidential communications are at [the client’s] instance permanently protected from disclosure…by the legal adviser”).

[63] Currently, courts recognize that utilitarian concerns justify even the husband-wife privilege. Courts protect private conversations between spouses to promote “the harmony and sanctity of the marriage relationship.” See Trammel v. United States, 445 U.S. 40, 44 (1980); see also Wolfle v. United States, 291 U.S. 7, 14 (1934) (“The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.”).

If courts do not recognize privacy rights in very intimate relationships, see Bowers v. Hardwick, 478 U.S. 186 (1986), then it follows that courts will not recognize privacy rights in an attorney-client relationship.

[64] Courts have suggested that civil litigants have a right to retain counsel under the due process clause. See, eg., Potashnick v. Port City Constr. Co., 609 F-2d 1101, 1118 (5th Cir. 1980). However, because the civil litigant has no immunity from testifying, the attorney-client privilege is not necessary to protect the right to retain counsel.

[65] See U.S. CONST. amend. VI.

[66] See U.S. CONST. amend. V.

[67] See Hazard, An Historical Perspective on the Attorney-Client Privilege, 66 CALIF. L. REV. 1061, 1062 (1978).

[68] See, e.g., Illinois v. Allen, 397 U.S. 337 (1969) (waiving right “to be present in the courtroom at every stage of his trial”); Johnson v. Zerbst, 304 U.S. 458 (1938) (waiving right to counsel); Patton v. United States, 281 U.S. 276 (1930) (waiving right to trial and verdict by a jury of 12 peers).

[69] See United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). For other examples of waiver of evidentiary privileges, see People v. Johnson, 111 Mich. App. 383, 388, 314 N.W.2d 631, 633 (1981) (waiving the physician-patient privilege); Romanowicz v. Romanowicz, 213 Pa. Super. 382, 385, 248 A.2d 238, 240 (1968) (waiving psychiatrist-patient privilege).

[70] 304 U.S. 458 (1938).

[71] Id. at 464 (requiring the “intentional relinquishment or abandonment of a known right or privilege”).

[72] See Champion Int’l Corp. v. International Paper Co., 486 F. Supp. 1328, 1332 (N.D. Ga. 19801

[73] See id.

[74] See, ag., In re von Bulow, 828 F.2d 94, 102 (2d Cir. 1987) (affirming district court’s finding of waiver of attorney-client privilege as to “matters actually disclosed in the book”); In re Subpoenas Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984) (finding that voluntary disclosure of privileged material to the SEC was a waiver as to the material revealed); Nye v. Sage Prods., Inc., 98 F.R.D. 452, 453 (N.D. Ill. 1982) (finding that producing privileged documents during discovery constituted waiver of privilege for those documents).

[75] See, eg., In re Subpoenas Duces Tecum, 738 F.2d 1367, 1369‑70 (D.C. Cir. 1984); In re Sealed Case, 676 F.2d 793, 809, 818 (D.C. Cir. 1982); Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C. Cir. 1981).

[76] In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987).

[77] Id.

[78] See Marcus, supra note 16.

[79] Id. at 1607.

[80] See id. Professor Marcus argues that because of the societal costs imposed by broad waiver rules, courts should make waiver decisions using a fairness standard. Professor Marcus believes that courts should abandon the practice of automatically finding waiver whenever there is a disclosure. See id. at 1608.

[81] Smith v. Alyeska Pipeline Serv. Co., 538 F. Supp. 977, 979 (D. Del. 1982) (finding that by disclosing some privileged communications, client waived privilege as to “the remainder of the communication [sic] which relate to the same subject matter”).

[82] See Davidson & Voth, Waiver of the Attorney-Client Privilege, 64 OR. L. REV. 637, 646 (1986); see also Developments in the Law, supra note 42, at 1629-30.

[83] See, eg., Byers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983) (waiving the attorney-client privilege by filing of legal malpractice action).

[84] See International Business Machs. Corp. v. Sperry Rand Corp., 44 F.R.D. 10 (D. Del. 1968) (releasing certain privileged information for negotiating purposes waived attorney-client privilege as to all confidential communications on the same subject matter).

[85] See, eg., United States v. Miller, 600 F.2d 498, 501-02 (5th Cir.), cert. denied, 444 U.S. 955 (1979); Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 615 (2d Cir.), cert. dismissed, 380 U.S. 248 (1964); Southwire Co. v. Essex Group, Inc., 37 Fed. R. Serv. 2d (Callaghan) 318 (N.D. Ill. 1983); Thornburg, Attorney-Client Privilege: Issue‑Related Waivers, 50 J. AIR L. & Com. 1039 (1985).

[86] United States v. Miller, 600 F.2d 498 (5th Cir.), cert. denied, 444 U.S. 955 (1979).

[87] See, eg., Russell v. Curtin Matheson Scientific, Inc., 493 F. Supp. 456 (S.D. Tex. 1980); Connell v. Bernstein-Macaulay, Inc., 407 F. Supp, 420 (S.D.N.Y. 1976).

[88] 407 F. Supp. 420, 422 (S.D.N.Y. 1976).

[89] See id.

[90] See id.

[91] See id. at 423.

[92] Some courts have applied a three-part test to determine whether a litigant has placed the protected information at issue. The test was first enunciated in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). The Hearn test requires the presence of three factors:

(1) assertion of the privilege was a result of some affirmative act, such as filing suit by the asserting party;

(2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and

(3) application of the privilege would have denied the opposing party access to information vital to his defense.

Id. at 581; see also Developments in the Law, supra note 42, at 1637‑43.

[93] See, eg., United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942) (When speaking about the fifth amendment, Judge Hand said, “[Tlhe privilege is to suppress the truth, but that does not mean that it is a privilege to garble it...it should not furnish one side with what may be false evidence and deprive the other of the means of detecting the imposition.”), cert. dismissed as moot, 319 U.S. 41 (1943); Marcus, supra note 16, at 1607.

[94] von Bulow by Auersperg v. von Bulow, 114 F.R.D. 71, 78-79 (S.D.N.Y. 1987).

[95] See, eg., United States v. Cote, 456 F.2d 142, 144-45 (8th Cir. 1972); Nye v. Sage Prods. Inc., 98 F.R.D. 452, 453 (N.D. Ill. 1982); R.J. Hereley & Son Co. v. Stotler & Co., 87 F.R.D. 358 (N.D. Ill. 1980); Handgards, Inc. v. Johnson & Johnson, 413 F. Supp. 926, 929 (N.D. Cal. 1976); Goldman, Sachs & Co. v. Blondis, 412 F. Supp. 286, 289 (N.D. Ill. 1976); ITT Corp. v. United Tel., 60 F.R.D. 177, 185-86 (M.D. Fla. 1973).

[96] See von Bulow, 114 F.R.D. at 71.

[97] For the subject matter waiver found in the von Bulow case, see the appendix to the case, 114 F.R.D. at 80-83.

[98] See Marcus, supra note 16, at 1627.

[99] See International Business Machs. Corp. v. Sperry Rand Corp., 44 F.R.D. 10, 13 (D. Del. 1968) (citing Wigmore for the proposition that the rule of subject matter waiver by partial disclosure is “one dictated by considerations of fairness”).

[100] See United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir.), reh’g denied, 688 F.2d 840 (1982), cert. denied, 466 U.S. 944 (1984).

[101] The utilitarian justification seeks to promote freedom of consultation by assuring that disclosure of confidences would not be compelled in a court of law. See 8 J. WIGMORE, supra note 11, § 2291, at 545.

[102] The Court, in Upjohn Co. v. United States, 449 U.S. 383, 391 (1980), stated the general proposition that a lawyer needs all facts to give proper representation. Therefore, a client should give counsel all facts, not just those which he feels are helpful to his case.

[103] See id. (citing ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 4-1 (1980): “It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant.”).

[104] For example, a client might tell her attorney about a visit the client had with V the night V was murdered. The client may tell the attorney that she left without harming V. The client may also tell the attorney that while visiting V, the client threatened V’s life. If the client then takes out an advertisement announcing that she told the attorney in confidence that V was alive and well when she left, the client has waived privilege protection for this statement.

Under the traditional utilitarian rationale, courts assume that the client would have told the attorney this exculpatory information regardless of whether the privilege existed. Thus, the disclosed information is no longer protected by the privilege.

Under a subject matter waiver theory, any information pertaining to the subject matter area, the client’s visit to V, is no longer protected by the privilege. In actuality, however, the client probably would not have told the attorney about the threat without the attorney-client privilege.

[105] See Duplan v. Deering-Milliken, Inc., 397 F. Supp. 1146, 1161‑62 (D.S.C. 1974) (when a client voluntarily waives the privilege as to some documents that the client considers not damaging and asserts the privilege as to other documents that the client considers damaging, courts must apply the rule of fairness and compel the client to produce all documents).

[106] International Tel.& Tel. v. United Tel. Co., 60 F.R.D. 177,185 (M.D. Fla. 1973) (citing 8 J. WIGMORE, supra note 11, § 2285, at 527, for the proposition that “privileges are exceptions to the general duty of every person to give testimony upon all facts inquired of in a court of law”).

[107] Wigmore felt that the privilege should be used solely as an incidental means of defense, not as an independent means of attack. See 8 J. WIGMORE, supra note 11, § 2327, at 636.

[108] See Hunt v. Blackburn, 128 U.S. 464 (1888).

[109] See Marcus, supra note 16, at 1628 n. 126 (citing Smith v. Alyeska Pipeline Serv. Co., 538 F. Supp. 977, 980 (D. Del. 1982), aff’d mem., 758 F.2d 668 (Fed. Cir. 1984), cert. denied, 471 U.S. 1066 (1985) (defendant testifying that he terminated contract on advice of counsel waives all advice received on the subject)); see also Thornburg, supra note 85.

[110] In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987) (stating that children had not shown that disclosures affected litigation).

[111] See von Bulow by Auersperg v. von Bulow, 114 F.R.D. 71, 80 (S.D.N.Y. 1987).

[112] In re von Bulow, 828 F.2d 94, 103 (2d Cir. 1987).

[113] See Patterson v. Colorado, 205 U.S. 454, 462 (1907).

[114] See id.

[115] See A. FRIENDLY & R. GOLDFARB, CRIME AND PUBLICITY 96-101 (1967). Change of venue helps assure impartial juries by moving the trial to a place where disclosure would have less effect. Id.

[116] See id. Continuances help assure impartial juries by delaying the trial until the influence of the disclosure abates. Id.

[117] See id. at 101-06. Voir dire examination helps assure impartial juries by disqualifying potential jurors who have formed unalterable opinions on issues in the case because of the disclosures. Id.

[118] See id. at 106-11. Judge’s instructions help assure an impartial jury by telling the jury to reach its verdict based only on the evidence presented in court. Id.

[119] See, e.g., Champion Int’l Corp. v. International Paper Co., 486 F. Supp. 1328, 1332-33 (N.D. Ga. 1980); First Wis. Mortgage Trust v. First Wis. Corp., 86 F.R.D. 160, 174 (E.D. Wis. 1980); United States v. Aronoff, 466 F. Supp. 855, 862-63 (S.D.N.Y. 1979).

[120] See United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979).

[121] See Marcus, supra note 16, at 1633.

[122] 98 F.R.D. 452 (N.D. 111. 1982).

[123] See id. at 453.

[124] See id.

[125] Id.

[126] See id.

[127] Id.

[128] See International Tel. & Tel. Co. v. United Tel. Co., 60 F.R.D. 177 (M.D. Fla. 1973).

[129] 60 F.R.D. 177 (M.D. Fla. 1973).

[130] Id. at 179.

[131] Id.

[132] Id.

[133] Id.

[134] Id. at 186.

[135] Id.

[136] 114 F.R.D. 71 (S.D.N.Y.), rev’d, 828 F.2d 94 (2d Cir. 1987); see also Agnew v. State, 51 Md. App. 614, 650, 446 A.2d 425, 445 (Ct. Spec. App. 1982) (former Vice President Agnew could no longer claim privilege for confidential communications that “were essentially revealed to the world” by publishing the communications in a book, although the court did not address the question of subject matter waiver).

[137] See, e.g., AMCA Int’l Corp. v. Phipard, 107 F.R.D. 39 (D. Mass. 1985) (confidential memorandum, stating attorney’s interpretation of contracts, disclosed to adversary in effort to settle lawsuit); Weil v. Investment/ Indicators Research & Management, Inc., 647 F.2d 18 (9th Cir. 1981) (confidential communications, concerning legal advice, disclosed by defendant to plaintiff before trial, to demonstrate lack of scienter in securities fraud case).

[138] See supra notes 115-18 and accompanying text.

[139] Courts would not allow such a person to sit on a jury because the person is probably a close friend, family member, or other acquaintance of a party involved in the case. Cf. FED. R. EVID. 606(a) (jury member may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror).

[140] See supra notes 111-18 and accompanying text.

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