The existence of a privilege of non-disclosure and waiver of the privilege are two closely related issues. If one shares information with another who is not seeking legal advice or helping to develop or implement legal advice the privilege may not come into existence in the first place, or such sharing may cause a privileged communication to lose protection by disclosure.
The Special Master’s Report in the New York Renu product liability case (at 325) and the discussion of the limitations on waiver – F. R. Evid. 502 – present an opportunity to show how the competing considerations – truth and access to counsel are weighed in both the creation of a privileged communication and in the loss of its privileged character. The slides that follow were developed to aid that discussion in class. – GWC