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David Booth Alden, a partner at Jones Day, contributed this guest post. He’s the guru of attorney-client privilege, and we’re pleased to be able to share his thoughts on a recent Second Circuit case. As with all guest posts, the credit goes to our contributor alone; we played no role in crafting this:

A mid-1970s decision from the Eastern District of Washington, Hearn v. Rhay, set forth a test for implied attorney-client privilege waivers that, in the intervening decades, has been the foundation of a lengthy string of decisions finding privilege waivers where most might think that no waivers should have occurred. Recently, the Second Circuit considered and flatly rejected Hearn’s overly-broad implied waiver test in In re County of Erie, No. 07-5702, 2008 U.S. App. LEXIS 21496 (2d Cir. Oct. 14, 2008). Hopefully, County of Erie will relegate Hearn to the dustbin of legal history along with other seemingly sensible, but ill-advised rulings.


Hearn was a 42 U.S.C. § 1983 action brought by a state prison inmate against prison officials relating to his year-and-a-half confinement in a “mental health unit” that allegedly was “a punitive isolation tier” with deplorable living conditions. Hearn v. Rhay, 68 F.R.D. 574, 577 (E.D. Wash. 1975). The defendant prison officials raised affirmative defenses, including that they had acted in good faith and, thus, were immune from a suit for damages. Id. The inmate then sought to discover “all legal advice defendants received on the legality of plaintiff’s confinement in the mental health unit” based on the contention that the privilege was “not available … in the context of this case” or had “been waived by defendants’ assertion of the good faith defense.” Id.

Addressing the waiver claim, the Hearn court first noted that privilege waivers commonly result when patients sue doctors or clients sue lawyers. In those situations, three conditions are satisfied; namely, the “(1) assertion of the privilege was a result of some affirmative act, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.” Id. at 581.

Turning to the case before it, Hearn found there had been a waiver because “defendants invoked the privilege in furtherance of an affirmative defense they asserted for their own benefit; through this affirmative act they placed the protected information at issue, for the legal advice they received is germane to the qualified immunity defense they raised; and one result of asserting the privilege has been to deprive plaintiff of information necessary to ‘defend’ against defendants’ affirmative defense.” Id.

Hearn then rejected the defendants’ claims that, because they had not raised an advice of counsel defense, there was no waiver. Id. at 581 n.5. Finally, the court stated that privilege claims require a need-based balancing analysis because the privilege “protects confidential attorney-client relationships only to the extent that the injury the relationship would suffer from disclosure is greater than the benefit to be gained thereby.” Id. at 582. According to Hearn, “attorney-client communications are usually incidental to [a] lawsuit,” yet when “they inhere in the controversy itself” as they supposedly did there, “the benefit to be gained from disclosure far outweighs the resulting injury to the attorney-client relationship.” Id.

The Aftermath

Hearn has been cited in over three hundred cases (not always with approval) and has spawned a great deal of privilege mischief as privilege challengers have used it to support novel and aggressive waiver claims. Hearn’s starting point – that a privilege-holder’s affirmative actions placing privileged communications “at issue” may result in a waiver – is not extraordinary. But the second and third prongs of Hearn’s implied waiver test have been extremely useful to those advancing aggressive privilege waiver claims in two respects.

First, the Hearn defendants’ “sin” was, in essence, denying the claims against them and thereby making potentially inconsistent privileged communications relevant. Because defendants routinely defend themselves with denials and there might always be inconsistent privileged communications, the focus on relevance in Hearn’s second prong significantly expanded the range of cases in which privilege waiver battles could be fought. Separately, Hearn’s third prong created a need-based balancing analysis. Because parties challenging privilege claims are quick to note both the potentially monumental significance of what they might find and their hopeless plight if their requests are denied, the need-based waiver standard in Hearn’s third prong has been extremely useful to privilege challengers.

County of Erie

County of Erie, like Hearn, was a 42 U.S.C. § 1983 action by prisoners against prison officials, this time a class action challenging the legality of the Erie County Sheriff’s Office’s strip search policy. The district court initially ordered production of ten attorney-client e-mails based on a finding that they reflected policymaking, not legal advice. The Second Circuit granted a writ of mandamus, finding that “each of the ten disputed e-mails was sent for the predominant purpose of soliciting or rendering legal advice.” In re County of Erie, 473 F.3d 413, 422 (2d Cir. 2007).

On remand, the district court again ordered production of the e-mails, this time based on its finding that the defendants had waived the privilege by placing the otherwise privileged communications “at issue.” Relying on Hearn’s three-part test, the district court found that the county officials’ testimony that county attorneys had been involved in discussions about changing the strip search policy meant that the defendants had “reli[ed] on privileged communications to support the contention that the strip search policy … was lawful.” Pritchard v. County of Erie, No. 04-CV-534C, 2007 WL 3232096, *5 (W.D.N.Y. Oct. 31, 2007). The district court also found that “pleading conduct in conformity with the law, and then asserting privilege to protect from disclosure facts that might disprove this contention … placed the advice … about the legality of the strip search policy directly in issue.” Id. at *4.

The Second Circuit, seeking “to clarify the scope” of implied waiver jurisprudence so as “to modify the very broad application of the [implied waiver] rule that has found favor in some quarters,” granted a second writ of mandamus. In re County of Erie, No. 07-5702, 2008 U.S. App. LEXIS 21496, *10 (2d Cir. Oct. 14, 2008). It began by observing that “[u]nderlying any determination that a privilege should be forfeited is the notion of unfairness,” which “‘has been decided … on a case-by-case basis, and depends primarily on the specific context in which the privilege is asserted.’” Id. at *15 (citation omitted).

Turning to Hearn’s implied waiver standard on which the district court had relied, the Second Circuit noted that, “[a]ccording to Hearn, an assertion of privilege by one who pleads a claim or affirmative defense ‘put[s] the protected information at issue by making it relevant to the case.’” Id. at *15-16 (quoting Hearn). The Second Circuit found this test too broad because “privileged information may be in some sense relevant in any lawsuit.” Id. at *16 (italics in original). “The Hearn test … would open a great number of privilege communications to claims of at-issue waiver” and lacks “the essential element of reliance on privileged advice in the assertion of a claim or defense in order to effect a waiver.” Id. Rejecting Hearn’s implied waiver test, the Second Circuit held that, for there to be an implied “at issue” waiver, “a party must rely on privileged advice from his counsel to make his claim or defense.” Id. (italics in original).

On the facts presented in County of Erie, the Second Circuit found that the district court erred in finding that the county defendants’ qualified immunity claims placed the privileged communications at issue because that defense is evaluated under “an objective, not a subjective, test.” Id. at *17. Similarly, the Second Circuit found that the county officials’ deposition testimony did not result in an implied waiver because “the principal substance of the attorney-client communications was not revealed.” Id. at *18. Further, there was no waiver because the deposition testimony “was not before a ‘decision-maker or fact finder,’” so the plaintiffs “ha[d] not been placed in a disadvantaged position at trial.” Id.

The End of Hearn

One reason why Hearn’s implied waiver analysis is flawed is that, as the Second Circuit found in County of Erie, mere relevance is an incredibly and unduly broad test. Another is that Hearn’s third prong’s need-based standard likely did not survive Swidler & Berlin v. United States, 524 U.S. 399 (1998). There, the Supreme Court found that “[b]alancing ex post the importance of the information against client interests … introduces substantial uncertainty into the privilege’s application” and, “[f]or just that reason, [the Court] ha[d] rejected use of a balancing test in defining the contours of the privilege.” 524 U.S. at 409 (citation omitted). In any event, County of Erie should be the end of Hearn’s breathtakingly broad standard of implied privilege waivers in the Second Circuit and perhaps more broadly.