Second Circuit Clarifies At-Issue Waiver of the Attorney-Client Privilege

On October 14, 2008, the United States Court of Appeals for the Second Circuit addressed an important question of attorney-client privilege -- the concept of "at-issue" waiver. The attorney-client privilege, which generally protects communications between client and counsel, can be deemed waived if a party puts privileged communication at issue in a case. After In re Erie, a finding of at-issue waiver requires that the privileged communication be relied upon in asserting a claim or defense.