Legal Definitions - selective disclosure

Selective disclosure occurs when an individual or entity reveals only a specific portion of information that is legally protected (known as "privileged communication"), while intentionally keeping other related, potentially unfavorable parts secret. This action is typically taken to present a more positive impression or gain an advantage in a legal proceeding or dispute.

However, engaging in selective disclosure carries a significant risk: by revealing even a small part of privileged information on a particular subject, the legal protection (privilege) over *all* information related to that specific subject might be considered waived. This means a court could then compel the party to reveal the entire communication or all related communications, including the parts they initially intended to keep confidential.

• Example 1: Corporate Litigation

  A large corporation is facing a lawsuit alleging that one of its products caused harm due to a design flaw. To demonstrate its commitment to safety, the company's legal team decides to present a small excerpt from an internal memo written by its corporate counsel. This excerpt highlights the counsel's advice to implement a new, more rigorous safety testing protocol for the product.

  How it illustrates selective disclosure: The company is selectively disclosing only the favorable part of a communication protected by attorney-client privilege. They are using this specific excerpt to suggest they were proactive and responsible, while intentionally withholding other parts of the same memo, or other related legal advice, that might discuss known risks or potential design flaws that were not immediately addressed. A court might rule that by revealing this portion, the company has waived its attorney-client privilege for *all* communications related to that product's safety, forcing them to disclose the less favorable information as well.

• Example 2: Employment Dispute

  An employee is suing their former employer for wrongful termination, alleging discrimination. The company conducted an internal investigation into the employee's claims, which resulted in a confidential report prepared with the assistance of legal counsel. To defend itself, the company presents a specific section of this report that concludes there was no evidence of discrimination.

  How it illustrates selective disclosure: The company is revealing only a specific finding from a privileged internal document (often protected by attorney-client privilege or the work product doctrine) to support its defense. They are keeping other sections of the report confidential, such as witness statements that might have suggested a hostile work environment or internal disagreements about the termination decision. This act could lead a court to order the company to produce the *entire* investigation report, as the privilege might be deemed waived for the whole subject matter of the investigation.

• Example 3: Medical Malpractice Case

  A patient is suing a hospital for medical malpractice, claiming a specific surgical error led to severe complications. During the legal discovery process, the patient's lawyer provides the hospital's defense team with a copy of a doctor's note from the patient's medical record that clearly describes the surgical complication and links it to the procedure.

  How it illustrates selective disclosure: The patient's lawyer is providing only this specific note, which is protected by doctor-patient privilege, because it strongly supports their client's claim. However, they are withholding other parts of the patient's medical history, such as previous medical conditions, lifestyle choices, or non-compliance with post-operative instructions, which might also have contributed to the complications or could be used by the defense to argue against the malpractice claim. By revealing only the favorable portion, the court might rule that the patient has waived their privilege regarding *all* medical information related to the complications and their overall health status relevant to the case, requiring them to disclose the previously withheld portions of their medical history.