§5.28 Waiver by Voluntary Disclosure

C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §5.28 (6th ed. Wolters Kluwer 2018)

GWU Law School Public Law Research Paper No. 2018-64

GWU Legal Studies Research Paper No. 2018-64

12 Pages Posted: 2 Nov 2018

See all articles by Christopher B. Mueller

Christopher B. Mueller

University of Colorado Law School

Laird C. Kirkpatrick

George Washington University - Law School

Liesa Richter

University of Oklahoma - College of Law

Date Written: 2018

Abstract

This article addresses waiver of the attorney-client privilege by voluntary disclosure. The central requirements of such waiver are that it be voluntary and disclose a “significant part” of the privileged communication. Selective disclosure to particular individuals or entities will generally waive the privilege as to all. However, disclosure to another person within a privilege will not result in waiver. The article concludes by discussing the effect of agreements between attorneys about waiver and pretrial orders by courts under FRE 502.

Keywords: waiver of attorney-client privilege, FRE 502, nonwaiver agreements, nondisclosure agreements, scope of waiver, selective waiver, writings used to refresh memory, privileged disclosure

Suggested Citation

Mueller, Christopher B. and Kirkpatrick, Laird C. and Richter, Liesa, §5.28 Waiver by Voluntary Disclosure (2018). C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §5.28 (6th ed. Wolters Kluwer 2018); GWU Law School Public Law Research Paper No. 2018-64; GWU Legal Studies Research Paper No. 2018-64. Available at SSRN: https://ssrn.com/abstract=3277027 or http://dx.doi.org/10.2139/ssrn.3277027

Christopher B. Mueller

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Laird C. Kirkpatrick (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Liesa Richter

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

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