The "at issue" doctrine represents the most
frightening type of implied waiver. Litigants can trigger such a
waiver without disclosing, referring to, or relying on privileged
communications. Instead, an "at issue" waiver can occur
if litigants assert some position that necessarily places "at
issue" such privileged communications.
In Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264
(Alaska 2013), shareholders filed a derivative action against a
company's director and former law firm. The shareholders
alleged that defendants engaged in fraudulent conduct of which the
shareholders were unaware – although they were represented at
the time by their own lawyer. The court found an "at
issue" waiver – explaining that the shareholders
"cannot be permitted to thrust their lack of knowledge into
the litigation while simultaneously retaining the attorney-client
privilege to frustrate proof of knowledge that negates the very
foundation necessary to their positions." Id. at
1280
