In contrast to express waivers (which involve the disclosure of
privileged communications), implied waivers can occur without such
disclosure. The most common type of implied waiver involves the
client's explicit reliance on the fact of a privileged
communication – such as filing an "advice of
counsel" affirmative defense.
The most extreme form of implied waiver is called an "at
issue" waiver. This type of waiver can occur if the client
affirmatively advances some position that justifies analyzing the
client's mental state or motivation – including any legal
input. In Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist.
LEXIS 179609, at *3 (S.D.N.Y. Dec. 19, 2012), defendant Hearst
Corp. filed an affirmative defense that it had acted in "good
faith" in trying to comply with the Fair Labor Standards Act
and a parallel New York law. Plaintiff claimed that the defense
triggered an "at issue" waiver. Hearst resisted,
"citing court cases from other circuits for the
