In Ghio v. Liberty Insurance Underwriters, Inc., 212 Conn. App. 754 (2022), the Connecticut Appellate Court (Bright, C.J.) addressed for the first time, and adopted as law, the subject matter waiver rule in Connecticut.
The subject matter waiver rule provides that the voluntary disclosure of the content of a privileged attorney-client communication constitutes waiver of the privilege as to all other attorney-client communications on the same subject.
The purpose of the rule is to effectuate fairness and to discourage the use of the privilege as a litigation weapon. “A party should not be permitted to assert the privilege to prevent inquiry by an opposing party where the professional advice, itself, is tendered as a defense of explanation for disputed conduct.” Id. at 770 (quoting Zirn v. VLI Corp., 621 A.2d 773, 781-82 (Del. 1993)). Moreover, the rule serves to prevent a party from strategically using the attorney-client privilege to further the client’s interests by selective disclosure of otherwise privileged information. Id.
While the application of the rule in Connecticut presented an issue of first impression in Ghio, other jurisdictions have adopted it and, in fact, it is a mainstay of the Federal Rules of Evidence. See Fed. R. Evid. 502(a).
In Ghio, the Appellate Court formally adopted the subject matter waiver rule as law in Connecticut and decided that Rule 502(a) of the Fed. R. Evid. should guide the proper analytical framework for considering whether or not, in a particular case, a subject matter waiver has occurred:
Accordingly, we hold that the voluntary disclosure of a privileged attorney-client communication constitutes a waiver of the privilege as to all other communications concerning the same subject matter when the trial court determines that the waiver was intentional and that fairness dictates that the disclosed and undisclosed communications be considered together.
Id. at 775-76. An unintentional or inadvertent disclosure of protected attorney-client information can never result in a subject matter waiver. Id. at 776 (quoting Fed. R. Evid. 502, advisory committee notes).
If the trial court finds that the rule applies, it must next determine the scope of the waiver. Doing so requires a fact-intensive inquiry into “the nature of the disclosed communications, as well as those communications withheld as privileged.” Id. at 776; see Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349–50 (Fed. Cir. 2005) (“[t]here is no bright line test for determining what constitutes the subject matter of a waiver, rather courts weigh the circumstances of the disclosure, the nature of the legal advice sought and the prejudice to the parties of permitting or prohibiting further disclosures”), cert. denied, 547 U.S. 1069 (2006). In Ghio, the Appellate Court concluded that this determination required an evidentiary hearing and thus remanded the case for one.
Notably, the trial court is afforded discretion in defining the category of information for which the privilege has been waived and must always be mindful—pursuant to Fed. R. Evid. 502(a)(3)—of whether application of the rule furthers the principle of fairness. Id. at 776.
Now that subject matter waiver is the law in Connecticut, it is important to be mindful of, and perhaps extra careful about, the specific disclosures made in routine discovery. When creating a privilege log and otherwise considering either what production to request or, conversely, what production is responsive to a pending request, be aware of whether any disclosures will open the door to further otherwise-privileged information. The adoption of this rule is not ground-breaking and should not require the exercise of diligence not already due. But it may open doors to further disclosure that otherwise may have been off-limits, such as in Ghio, where the subject disclosure on appeal involved the production of select attorney-client communications to a third party in secondary, separate litigation.
The time period for filing a petition for certification to the Connecticut Supreme Court in Ghio has been extended until July 5, 2022; the losing party is expected to file such a petition.
NOTE: The Professional Liability Practice Group welcomes Dana M. Hrelic. Dana serves as counsel in the firm’s Litigation Practice and is also a member of the firm’s Appellate Practice. She has co-authored three books and routinely presents at continuing legal education programs on appellate practice and procedure, diversity in the profession, legal education, and innovation in the legal industry.