Legal Definitions - subject-matter waiver

A subject-matter waiver occurs when a party voluntarily discloses some privileged information on a particular topic, and by doing so, is deemed to have waived the privilege for *all* other privileged information related to that *same topic*.

This legal principle is designed to prevent parties from selectively revealing only the favorable portions of privileged communications while withholding other related, potentially unfavorable, information on the same subject. It ensures fairness and prevents a party from using privilege as both a "shield" (to hide information) and a "sword" (to selectively disclose information that supports their case).

• Example 1: Corporate Litigation and Legal Advice

  Imagine a large corporation is sued for allegedly selling a defective product. During a deposition, a company executive, attempting to demonstrate due diligence, testifies that the company's legal department reviewed the product's design and advised them it was compliant with all safety regulations. However, the executive only recounts the parts of the legal advice that support the company's defense.

  How it illustrates subject-matter waiver: By voluntarily disclosing *some* of the privileged legal advice concerning the *specific topic* of the product's regulatory compliance, the company might be deemed to have waived its attorney-client privilege for *all* other communications with its attorneys regarding the regulatory compliance of *that specific product design*. This could compel the company to produce internal legal memos or emails that might contain less favorable advice or discuss potential risks, which they initially intended to keep confidential.

• Example 2: Patent Dispute and Design Process

  Consider a patent infringement lawsuit between two technology companies. Company A claims Company B copied its patented software feature. To prove independent creation, Company B voluntarily provides a few internal engineering emails during the discovery phase, discussing *some* of their early design choices for the feature, hoping to show their original thought process.

  How it illustrates subject-matter waiver: By selectively disclosing these internal emails on the *topic* of their design process for that specific software feature, Company B could trigger a subject-matter waiver. This might force them to produce *all* other internal documents, notes, and communications related to the development of *that specific feature*, including those that were prepared in anticipation of litigation (known as "work product") and were initially protected from disclosure.

• Example 3: Contract Dispute and Negotiation Strategy

  A business owner is suing a former partner over the interpretation of a complex clause in their partnership agreement. In court, the owner testifies that their attorney advised them that the clause was "standard and perfectly acceptable" before they signed the agreement. The owner offers this testimony to show they acted reasonably and relied on expert advice.

  How it illustrates subject-matter waiver: By voluntarily revealing *part* of their attorney's advice on the *specific topic* of that contract clause's acceptability and interpretation, the owner might be deemed to have waived their attorney-client privilege. This could then require them to disclose *all* other communications with their attorney regarding the negotiation, risks, or interpretation of *that specific contract clause*, even if those communications contain advice that might contradict their current testimony or weaken their legal position.