TURNING OUT THE "LIGHT OF REASON AND EXPERIENCE": THE SELECTIVE WAIVER DOCTRINE AND PROPOSED FEDERAL RULE OF EVIDENCE 502

St. John's Law Review, Fall 2007 by Lambert, Michelle

As stated by Professor Wigmore, confidentiality provides the backbone for the attorney-client privilege.63 This statement is true when using either the instrumental theory or the privacy rationale to justify the privilege.64 Confidentiality supports the policy of enabling free communication between the client and attorney, which aids both the establishment and growth of the relationship.65 Thus, the attorney-client privilege may be later waived or destroyed by the loss of the necessary element of confidentiality.66 This can be done by (1) either the client or attorney testifying as to the communication, (2) putting the communication into issue in litigation, (3) voluntary disclosure to a third party, or (4) inadvertent waiver.67 Additionally, the presence of third parties at the time of the communication generally destroys the privilege ab initio.68 For example, communications between attorney and client in a crowded room are not confidential as to the third parties in the room; thus, the privilege never applies to those communications.69 Therefore, the privilege can only be maintained if the communication is confidential and the attorney and the client maintain that confidentiality.

C. Federal Rule of Evidence 501

In 1975, Congress adopted Rule 501 of the Federal Rules of Evidence.70 Rule 501 states:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by courts of the United States in the light of reason and experience.71

This general rule left privileges in the domain of the common law to be governed by court interpretations based on "reason and experience."72

Originally, the Supreme Court proposed thirteen specific rules of privilege.73 These privileges included a general rule of privilege, nine specific privileges, and three procedural rules of privilege.74 The Supreme Court's proposed rules of privilege almost halted the codification of the entire Federal Rules of Evidence and were quite controversial.75 Concerned that the Court's proposed rules of privilege lacked flexibility,76 Congress directed the Court to create one common law rule.77 As a result, Rule 501 was created to allow for flexibility within the judiciary by examining each privilege on a case-by-case basis, thus avoiding future "freezing" of the laws of privilege into one formation.78

II. THE SELECTIVE WAIVER DOCTRINE AND ITS PRECARIOUS EXISTENCE

A. The Selective Waiver Cases

Generally, voluntary disclosure of privileged communications to a third party outside of the attorney-client relationship waives the attorney-client privilege.79 The selective waiver doctrine acts as an exception to this rule of waiver by allowing voluntary disclosure of privileged communications by clients to government investigatory agencies, while maintaining the privilege as to other non-government third parties.80 The utilization of this doctrine by corporations that turn documents over to government agencies has caused a split in the circuit courts of appeals.81