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

Last week's Privilege Point described several cases in which litigants waived their privilege protection by filing a statutory "good faith" defense or just arguing that they acted in good faith.

Other courts take a different view. In Bacchi v. Massachusetts Mutual Life Insurance Co., defendant resisting a policyholder class action filed affirmative defenses "that it acted in good faith . . . and that its actions were approved by the appropriate regulatory agency." Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015). Not surprisingly, plaintiff claimed a waiver. The court rejected plaintiff's argument — noting that defendant "does not intend to rely on counsel's opinion or advice" — but instead "will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required." Id. at *15-16. About five weeks later, the Fourth Circuit reached the