Introduction
The attorney-client privilege is revered but not absolute. A party may waive the protection of the privilege, both expressly and by implication. The burden of proving waiver is on the party seeking to overcome the privilege.1
One form of waiver is variously called the "at issue waiver," "implied waiver," or the "issue injection exception."2 For at issue waiver to apply, the party asserting privilege must place in issue a confidential communication going directly to the claim or defense.3 The at issue waiver recognizes that it would be "inequitable to permit the party to use the attorney-client privilege as a sword by placing the advice of the attorney at issue while permitting the same party to use the attorney-client relationship as a shield to prevent inquiry into the asserted claim or defense."4
