§5.28 Waiver by Voluntary Disclosure
C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §5.28 (6th ed. Wolters Kluwer 2018)
12 Pages Posted: 2 Nov 2018
Date Written: 2018
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
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