Does Asserting A "Good Faith" Affirmative Defense Waive The Attorney-Client Privilege?: Part I

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the