The Perils of Privilege: Waiver and the Litigator

Waiver can be made less tricky, although it will never yield algebraic accuracy. Focusing on civil litigation, this article develops a framework for waiver decisions. It begins by stressing a factor that others have neglected – the costs generated by broad traditional waiver rules. These costs result largely from changes in lawyer behavior to reduce waiver risks. Thus, enormous energy can be expended to guarantee that privileged materials are not inadvertently revealed in discovery, and lawyers may adopt elaborate witness preparation strategies in order to prevent witnesses from seeing privileged materials. Judges also feel the burden; where waiver is at stake, parties will litigate privilege issues that otherwise would not require judicial attention. Finally, for those not lucky or wealthy enough to adopt strategies that avoid waiver, broad waiver rules erode the reliability of the privilege. In recognition of these costs, courts are increasingly willing to enter orders preserving privilege despite disclosure in order to facilitate the pretrial preparation process. Although commendable, these orders appear totally unenforceable under classical waiver doctrine. This article urges that the theory, like the courts, should take account of the costs; loss of privilege protection should be justified by something more than antipathy toward the privilege.