To: Gary Ostrick

From: Ben Beezy

Re: Scope of Subject Matter Waiver
Facts
Plaintiff Gutierrez is currently suing Defendants for violating his federally protected civil rights.
In a prior criminal proceeding against him, he waived the attorney-client privilege by having his
former attorney, Christopher Lombardi, submit to court Nine Declarations concerning legal
advice he sought about California Government Code section 11415.60. In the current civil
proceeding, Defendants seek more information from the attorney regarding Plaintiffs monetary
settlement with the California Department of Alcoholic and Beverage Control (ABC).
Questions Presented
1) What is the scope of the subject matter waived from Lombardis testimony, particularly how
much information is no longer protected by the attorney-client privilege regarding Plaintiffs
financial settlement with ABC?
2) When does the attorney-client privilege attach? Does the relationship change once a retainer is
paid?
Question One
Short Answer
Determining the exact scope of the waiver is depends upon the subject matter standard a court
chooses to adopt. Because the waiver was voluntary, there is more likelihood that a court will
permit broader disclosure. Since courts have failed to formulate a uniform standard for the scope
of subject matter cases, much of the outcome will be based on the discretion of the court.
Discussion
Courts have ruled that when privileged information is waived voluntarily or involuntarily, the
door is opened for further discovery on the subject matter waived. The main question is the
scope of the waiver. Courts apply the federal common law to set the boundaries of the waiver.
Although the law is unharmonious, courts have commonly parsed out broad and narrow
interpretations of the scope of the subject matter waiver.
C. Broad Subject Matter Waiver:
The broadest waiver is one that requires the disclosure of all communications that make
reference to the waived material. Courts seldom use this waiver. In United States v. W. Elec.
Co., Inc., 132 F.R.D. 1, 3 (D.D.C. 1990), the court identified four subject areas that the party
asserting the attorney-client privilege waived, and ordered that all communications addressing
those topics, in whole or in part may be disclosed. Courts generally do not apply this broad a

standard. One commentator suggests that this standard is used when courts deem the actions of a
party to be egregious and meant to block discovery. Roberta M. Harding, Show and Tell: An
Analysis of the Scope of the Attorney-Client Waiver Standards, 14 Rev. Litig. 367, 406 (1995).
Thus, this standard seems to only apply to extreme cases of a partys impeding of discovery.
The more common standard for broad scopes is the Related-to-the-Same-Subject-Matter
Standard. In In re Sealed Case, 676 F.2d 793, 798 (D.C. Cir. 1982) the court adopted this
standard after a party voluntarily provided privileged information to the federal government.
The court upheld this standard in In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989), but remanded
the issue to the district court to determine the actual boundaries. Thus, even when courts adopt a
broad scope, they sometimes have very little guidance with how to apply it. One author observed
that some factors that cause a court to adopt a broad standard include: the voluntary nature of
the disclosure, the use of tactics designed to avoid compliance with court orders, the selective
disclosure of communications that would advantage the privilege-holder, and the negligent
management of documents by the privilege-holder. Jennifer A. Hardgrove, Scope of Waiver of
Attorney-Client Privilege: Articulating A Standard That Will Afford Guidance to Courts, 1998 U.
Ill. L. Rev. 643, 664-65 (1998). One court has even formulated a seven-part factor test in order to
determine the breadth of the waiver, although it has only been cited by a handful of courts.
United States v. Skeddle, 989 F. Supp. 917, 919 (N.D. Ohio 1997)(When the court decided to
narrow the subject matter in this criminal prosecution of corporate fraud, it focused on whether
information waived by corporate counsel was distinct, severable activities which are selfcontained and unitary in focus.) While there seems to be no definite rule, two principles exist
that will more likely cause a court to construe the waiver broadly.
First, a voluntary waiver is more likely to have a broader waiver of subject matter. Court
generally limit the scope when documents are waived inadvertently. For instance, in a much
cited case to this principle, in Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House
Group, Inc., 116 F.R.D. 46, 52 (M.D.N.C. 1987) the court wrote:
The general rule that a disclosure waives not only the specific communication but also the
subject matter of it in other communications is not appropriate in the case of inadvertent
disclosure, unless it is obvious a party is attempting to gain an advantage or make offensive or
unfair use of the disclosure. In a proper case of inadvertent disclosure, the waiver should cover
only the specific document in issue.
Thus, emphasizing the fact that Gutierrez waived the confidentially information voluntarily is
important in convincing a court to adopt a broad waiver.
Second, courts have construed the subject matter waiver broadly are when the information
waived is being used for a tactical legal advantage. (See In re Sealed Case, 676 F.2d 793, 798
(D.C. Cir. 1982) (Subject matter waiver construed broadly when certain privileged
communication was voluntary given to the federal government.) In matters concerning
voluntary waiver, courts have been concerned with issues of fairness, when one party may be
disadvantaged by a partial disclosure of otherwise privileged information. Courts do not want a
party to reveal some privileged information for his or her own advantage without a way for
opposing counsel to receive other relevant information regarding the issue. Many district courts

have held that the scope should be broadened when these concerns arise. See Chinnici v. Central
DuPage Hosp. Assoc., 136 F.R.D. 464, 465 (N.D.Ill.1991) (Parties cannot be allowed selectively
to divulge privileged information without risking loss of privilege as to the rest of that
information); Teachers Ins. And Annuity Assn of America v. Shamrock Broadcasting Co., 521
F.Supp. 638, 641 (S.D.N.Y.1981) ( when a party discloses part of an otherwise privileged
communication, he must in fairness disclose the entire communication, or at least so much of it
as will make the disclosure complete and not misleadingly one-sided). Therefore, if we
convince a judge that the 3rivileged information was waived for tactical litigation purposes, the
more likely that he or she will broaden the scope of the waiver out of principles of equity.
B. Narrow Subject Matter Waiver:
In contrast, in other factual scenarios very similar to the cases mentioned above, courts
have chosen to narrow the scope by using the same subject matter standard.1 In Weil v.
Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 23-25 (9th Cir. 1981) a case
where a shareholder of mutual fund sought communications from the corporations attorney
about where to register shares, the Ninth Circuit ruled that only communications about the
matter actually disclosed namely, the substance of Blue Sky counsels advice regarding
registration of Fund shares pursuant to the Blue Sky laws of the various states. Weil has been
widely cited for a narrow subject matter waiver, although it may be distinguished factually
because it deals with the unique nature of derivative suits. Additionally, the court noted that only
a narrow scope was needed because the privileged communication was waived early in the
proceedings to opposing counsel as opposed to the court, and did not strongly prejudice the other
party. Id. at 25. In In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 255-56 (6th Cir.
1996), another case widely cited by courts that narrow the scope, the court strictly construed the
waiver about attorneys advice given about two points of a 24 point marketing plan. The court
ruled that only advice given about the two points was discoverable. In trying to apply the
standard the appellate court wrote, the District Court may have to determine the scope of waiver
on a question-by-question basis. Id. While there seems to be no principled reason for why the
court narrowly construed the waiver in the above case, the distinguished fact in this case may be
that each point to the marketing plan was severable and not overlapping with other
communications. Thus, explaining to a judge why communication about a subject is
interconnected or overlap is important in obtaining a broader waiver.
Just as in the broad subject matter waiver cases, courts still look to issues of fairness
when interpreting the scope of the subject matter waiver. See In re Von Bulow, 828 F.2d 94, 102
03 (2nd Cir. 1987) (when client makes extrajudicial disclosures, privilege waived only as to
conversations actually revealed); Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 157 (D. Del.
1977) (The Court found no document which would unfairly deprive defendant of access to facts
1

Another standard exists called the specific document standard. It is infrequently used and has
been mainly limited to cases when document production is sufficiently large and relatively few
privileged communications are inadvertently disclosed. Roberta M. Harding, "Show and Tell":
An Analysis of the Scope of the Attorney-Client Waiver Standards, 14 Rev. Litig. 367, 378
(1995).

relevant to particular subject matter disclosed in already produced documents.).

Even if Gutierrez convinces a court that the same subject matter should apply,
communications regarding the financial settlement with ABC still may be included. For instance
in Weil, the court looked to the general substance of the advice. Therefore, there is room
within the same subject matter standard to persuade a court to broaden the scope of the waiver.
(Contrast With Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 462 (N.D. Cal. 1978), which
limited the scope to specific conversation with specific individuals).
C. Reliance on Attorney Advice
Under a separate line of cases, sometimes outside of the subject waiver issue, court have
broadened the scope of a subject matter of waiver when a central aspect of a partys claim is in
relation to relying on counsels advice. See U.S. v. Amlani, 169 F.3d 1189, 1196 (9th Cir. 1999)
(where defendant claimed prosecutions disparagement of defense counsel caused substitution of
counsel, defendant waived privilege with respect to communications relating to counsels
substitution); U.S. v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) (defendants assertion of
good faith defense to charges of fraud based on advice of counsel, waived attorney client
privilege); Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929 (N.D.Cal.1976)
(deliberate injection of reliance on the advice of counsel into case waived the attorney-client
privilege as to communications and documents relating to the advice). The key case in the Ninth
Circuit is Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1156-63 (9th Cir. 1992) that the phrase
the privilege which protects attorney-client communications may not be used both as a sword
and a shield. The court ruled that when tax advice was being used to demonstrate intent for
misleading investors, counsel would have to forgo all communication for which the client relied
upon. The court wrote, Pennzoil cannot invoke the attorney-client privilege to deny Chevron
access to the very information that Chevron must refute in order to demonstrate that Pennzoils
Schedule 13D is materially misleading. Id. at 1163. Thus, courts are more likely to widen the
subject matter of the waiver, when a partys reliance on counsels advice is part of a claim or
defense. Generally, the broad scope is granted when reliance on attorney advice is part of a
claim or defense, but the Ninth Circuit applied this law when advice of counsel was merely
placed at issue. Id. at 1163. Convincing a court that Gutierrezs reliance on counsels advice is
a related part to this claim could invoke this favorable line of cases, and would be inherently
have a broader scope than in the cases mentioned above.
Conclusion
Although the law is broad and fails to set a coherent standard, this means that a court is
mostly concerned with why the current factual scenario needs a broader scope of waiver.
Expressing why it is more fair to judge is perhaps the best way to do this. In addition,
explaining to a court that Guiterrez relied on his attorneys advice in committing an illegal act
may also open up a set of cases that can be used to grant a wide waiver. Even if a court adopts a
narrower standard we still must explain why something may be considered under the same
subject matter. Thus, even if a court decided to apply the standard in Weil we may still be able
to have access to other documents.

Question Two
In the Ninth Circuit, an eight-element test is established to determine whether the
attorney-client privilege applies.2 While courts have heavily expounded each element, they seem
to all agree that legal advice provided before or after a fee is retained is privileged. Alexander v.
United States, 138 U.S. 353, 358, 11 S. Ct. 350, 352, 34 L. Ed. 954 (1891) (neither the payment
of a fee nor the pendency of litigation was necessary to entitle him to the privilege);
Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978)
(professional relationship is not dependent upon the payment of fees nor upon the execution
of a formal contract).

The test was recently applied in United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010): (1)
Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as
such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client,
(6) are at his instance permanently protected (7) from disclosure by himself or by the legal
adviser, (8) unless the protection be waived.