Fortunately for litigants hoping to successfully assert, and not lose, privilege protection, common law and federal rule developments now generally limit subject matter waivers to a litigant's intentional reliance on privileged communications to gain an advantage in a judicial setting. Despite these very favorable developments, some defendants still lose.
In Stolarik v. New York Times Co., No. 17 Civ. 5083 (PGG), 2019 U.S. Dist. LEXIS 160994 (S.D.N.Y. Sept. 20, 2019), a former New York Times photographer filed a Fair Labor Standards Act claim against the newspaper. The newspaper produced five documents that had earlier appeared on its privilege log, and also allowed an Assistant Managing Editor to testify about "the role that lawyers had played in [the challenged independent contractor] decision and the advice they had given." Id. at *4. But the newspaper continued to withhold communications with its outside law firm Proskauer Rose. The court ordered the New York Times to produce the documents – concluding after an in camera review that "all of these documents address the same subject matter." Id. at *8. As the court bluntly put it, there was "no principled basis . . . to distinguish between the advice the in-house lawyers provided to their clients, and the advice that Proskauer provided to the in-house lawyers for purposes of determining whether there has been a waiver of the attorney-client privilege." Id. at *8 n.1.
Although subject matter waivers have become less worrisome, corporations must remember the remaining risks of relying on some privileged communications while withholding others.