The Subject Matter Waiver Risk Continues To Recede

In some situations, disclosure or reliance on privileged communications or protected work product triggers a "subject matter waiver" — requiring the owner's disclosure of additional related communications or work product. Historically, some jurisdictions found a subject matter waiver in many counterintuitive contexts — for instance, based even on litigants' inadvertent production of a protected document.

Many jurisdictions eventually adopted a common law doctrine finding subject matter waivers only upon intentional disclosure in a judicial setting. Recently, Federal Rule of Evidence 502 has limited subject matter waivers to litigants' disclosure or use of protected communications to paint a misleading picture in litigation. Courts are taking these developments to heart. In Mitre Sports International, Ltd. v. Home Box Office, Inc., No. 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812, at *3 (S.D.N.Y. Jan. 13, 2015), defendant HBO argued that Mitre triggered a