The "at issue" doctrine stands at the extreme end of
the implied waiver spectrum. In courts recognizing the doctrine,
litigants can trigger an attorney-client privilege waiver without
disclosing, relying on, or even referring to privileged
communications. The waiver instead results from the litigant's
affirmative reliance on some argument that necessarily implicates
privileged communications.
In United States v. Juan, Eastern District of Virginia
Judge Robert Payne dealt with a criminal defendant who signed a
statement indicating that he fully understood a plea agreement
— but later argued (through counsel) that there was
"'utter confusion'" about what he was admitting
in his statement. Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS
121258, at *9 (E.D. Va. Aug. 29, 2014) (internal citation omitted).
Although the defendant argued that "he has not challenged the
effectiveness or the competency of his former counsel," Judge
Payne found that defendant's arguments
