A litigant can trigger an "at issue" waiver by affirmatively asserting some position that necessarily implicates privileged communications. These waivers represent the most extreme example of implied waivers, which do not involve the actual disclosure of privileged communications.
In Apple Inc. v. Samsung Electronics Co., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015), Samsung's law firm Quinn Emanuel improperly disclosed protected Apple information to Samsung employees. In defending against Apple's motion for sanctions, Quinn Emanuel, among other things, "characterized the nature and intent" of its lawyers' communications with Samsung (while withholding them as privileged); pointed to privileged (and withheld) communications "to support its argument that neither Samsung nor Quinn Emanuel" used confidential information; and argued that "Quinn Emanuel at all times complied with the protective order." Id. at *73-75. The court concluded that "[w]ithout access to the documents Samsung put directly at issue, neither Apple nor Nokia [whose information was also improperly disclosed] could evaluate whether Samsung's explanations and arguments lacked credibility." Id. at *76. The court found that Quinn Emanuel had triggered an "at issue" waiver, and denied Samsung's effort to avoid the waiver "by retroactively withdrawing its arguments." Id. at *85. As the court put it, "having already benefited from its arguments . . . about the contents of the privileged documents [by avoiding greater sanctions, Samsung] cannot now seek to withdraw those arguments." Id. at *86.
Although perhaps the "sword-shield" analogy seems trite, it accurately captures the "at issue" doctrine's theme — which can trip up even sophisticated clients and their lawyers.
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