In In re Fresh & Process Potatoes Antitrust Litigation, No. 10-md-02186 (D. Idaho Apr. 11, 2014), the court held that asserting an advice of counsel defense led to broad waiver. In this antitrust matter, two sets of defendants asserted as an affirmative defense the “good faith belief that their conduct was permissible.” The first group of defendants asserted that their good faith was based on the advice of counsel. This group entered into what the group characterized as a “narrow” waiver agreement with plaintiffs, and argued that waiver applied only to information that counsel had provided to defendants, and that it did not apply to information in counsel’s files that had not been transmitted to defendants. The court rejected defendants’ argument and found that the waiver extended to all communications with counsel and information in counsel’s possession that may have been considered by counsel in rendering the opinions relied upon, so that plaintiffs could fully question defendants and their counsel. The second group of defendants raised a good faith defense, but expressly stated to the court that the defense was based solely on public statements, and that the defendants would not rely on communications with counsel to prove the defense. The court rejected plaintiffs’ argument that the second group had put the advice of counsel “at issue.” So long as the second group of defendants did not refer to or attempt to put into evidence any suggestion that the defendants sought, obtained, or relied upon counsel’s advice, defendants would not put counsel’s advice “at issue,” and could continue to assert privilege.