Chapter 9

WAIVER
A. WHO MAY WAIVE?
1. The Individual Client
§9:1 Generally
§ 9:2 Agents of Individual Client--Implied Authority to Waive
2. Joint Clients--Participants in Common Defense
§ 9:3 Generally
§ 9:4 Waiver of Joint Privilege by Criminal Defendant
3. The Corporate Client
§ 9:5 Corporate Officers and Directors on Behalf of Corporation
§ 9:6 Corporate Officers and Directors on Their Own Behalf
§ 9:7 Corporate Employees (Past and Present)
§ 9:8 Corporate Attorney
§ 9:9 Corporate Bankruptcy Trustee
4. Attorney as Agent of Client
§ 9:10 Generally
5. Third Parties
§ 9:11 Generally
§ 9:12 Bankruptcy Trustee
§ 9:13 --As Successor-in-Interest to Management of Corporate Debtor
§ 9:14 --The Individual Debtor
§ 9:15 Bankruptcy Examiner--Debtor-in-Possession
§ 9:16 Receiver
§ 9:17 Representative/Executor/Trustee of Estate or Trust
§ 9:18 Devisees, Heirs, and Legatees
B. INTENTION TO WAIVE
§ 9:19 Generally
C. BURDEN OF PERSUASION
§ 9:20 Generally
D. DURATION OF WAIVER
§ 9:21 Generally
E. EXPRESS AND IMPLIED WAIVERS
1. Introduction
§ 9:22 Generally
2. Failure to Take Reasonable Precautions to Preserve Confidentiality
§ 9:23 Generally
§ 9:24 Scope of Waiver
3. Involuntary Disclosures
§ 9:25 Judicially-Compelled Disclosures
§ 9:26 Purloined Communications
4. Voluntary Disclosure or Use of Privileged Communications
a. Introduction
§ 9:27 Generally
§ 9:28 Partial Disclosure--Selective Waiver Forbidden
§ 9:29 Public or Technical Information in Disclosed Communications
§ 9:30 Scope of Waiver
b. Failure to Properly Object to Disclosure of confidential Communications
§ 9:31 Generally
§ 9:32 Scope of Waiver
c. Evidentiary Use of Privileged Communications
§ 9:33 Generally
§ 9:34 Attorney's Use of Information Confidentially Communicated by Client
§ 9:35 Anticipating Evidentiary Use For Pretrial Discovery Purposes
§ 9:36 Scope of Waiver
d. Refreshing Recollection With Attorney-Client Communications
§ 9:37 Generally
§ 9:38 While Testifying
§ 9:39 Prior to Testifying
§ 9:40 --"Necessary in Interest of Justice"
§ 9:41 Scope of Waiver
§ 9:42 Does Attorney's Review of Privileged Documents Waive Privilege?
5. Injecting Attorney-Client Communications into Litigation
a. Introduction
§ 9:43 Generally
b. Reliance on Advice of Counsel
§ 9:44 Generally
§ 9:45 Joint Clients--Advice of Counsel Raised by Only One-- Mandatory Severance Requirement
§ 9:46 Joint Clients--Advice of Counsel Raised by Corporate Officers
§ 9:47 Who May Put Reliance on Advice of Counsel in Issue or Make it Relevant to Action and Thereby Waive Privilege?
§ 9:48 Notice of Intention to Rely on Advice of Counsel
§ 9:49 Scope of Waiver
c. Asserting Claim or Defense that Makes Attorney-Client Communications Relevant to, but not Issue in, the Cause of Action
§ 9:50 Generally
§ 9:51 Good Faith
§ 9:52 Knowledge/Estoppel/Statute of Limitations
§ 9:53 Scope of Waiver
d. Attacks on Counsel/Self Defense Rule
§ 9:54 Generally
§ 9:55 Must Client Initiate Charges?--Self-Defense Exception in Third Party Actions Against Attorney
§ 9:56 --Problems Created by the Expanded Self-Defense Exception--Need for Substantive and Procedural Limitations
§ 9:57 --Expanded Self-Defense Exception Raises No Serious Constitutional Issues
§ 9:58 Must There be Formal Charges or Will Threatened Charges Against Attorney Suffice?
§ 9:59 Scope of Waiver
e. Action Against Client for Payment of Fees
§ 9:60 Generally
6. Misuse of Attorney-Client Relationship
§ 9:6 Generally
7. Cooperation Clauses in Insurance Contracts
§ 9:62 Generally
8. Will Contests
§ 9:63 Generally
§ 9:64 "Claiming Under" Will, Testator or Estate
F. EXCEPTIONS TO WAIVER BY VOLUNTARY DISCLOSURE
§ 9:65 Generally
§ 9:66 Joint Clients
§ 9:67 Participants in Common Defense--Individuals With Community of Interest
§ 9:68 Disclosures With Reservations
§ 9:69 Inadvertent Disclosures
§ 9:70 --What Constitutes Inadvertence?
§ 9:71 --Precautionary Measures to Guard Against Disclosure
§ 9:72 --Timely Efforts to Retrieve--Fairness to the Adversary
§ 9:73 --Inadvertence of Counsel
§ 9:74 --Burden of Persuasion
§ 9:75 --Scope and Effect of Inadvertent Disclosure Doctrine
§ 9:76 --Implications of Inadvertent Disclosure Doctrine
G. SCOPE OF WAIVER
1. Introduction
§ 9:77 Generally
2. Selective Waiver\Subject Matter of Waiver
a. Introduction
§ 9:78 Generally
b. Scope of Waiver of a Derivative Claim
§ 9:79 Generally
c. Scope of Waiver Might not Extend Beyond
Disclosed Communication
§ 9:80 Generally
§ 9:81 Future Litigation
§ 9:82 Disclosure by Attorney of Materials Prepared for Client
§ 9:83 Disclosure by Attorney of Pre-Existing Documents Communicated by Client
d. Defining the Subject Matter of Waiver
§ 9:84 Generally
3. Individuals to Whom Waiver Runs
a. Who May Have Access to the Communications
§ 9:85 Generally
b. Limited Waiver
§ 9:86 Generally
§ 9:87 Logic of Limited Waiver
§ 9:88 Implicit Recognition of Limited Waiver
§ 9:89 --Disclosures During Negotiations
§ 9:90 --Express Reservations Accompanying Disclosures
§ 9:91 --Protective Orders
§ 9:92 Collateral Estoppel
4. Whose Communications With The Client are Waived?
§ 9:93 Generally
5. Time Frame of Waiver
§ 9:94 Generally

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Chapter 9 of 12
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