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Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall

Kenneth J Duvall

Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …