Under the “at issue” waiver doctrine, the attorney-client privilege is waived where a litigant affirmatively places the subject of its own privileged material at issue in litigation so that the opposing party must access that privileged material to defend the claim asserted against it. As the First Circuit noted in In re Keeper of Records, the logic behind the doctrine is most apparent in cases involving an “advice of counsel” defense where a client asserts reliance on his or her attorney’s advice as a defense to another’s claim. [2] According to the First Circuit, “when such a defense is raised, the pleader puts the nature of its lawyer’s advice squarely in issue, and, thus communications embodying the subject matter of the advice typically lose protection.” [3]
The decisions turned on application of the “at issue” doctrine: the implied waiver of privilege that occurs when a party puts otherwise privileged information “at issue” in litigation. Massachusetts courts have previously held that privilege waiver occurs when the privilege holder affirmatively interjects the substance of otherwise privileged information into a claim, counterclaim or defenses and an opposing party needs access to that information to respond properly. [1]
Outside the “advice of counsel” context, the reach of the “at issue” doctrine is less predictable and, as a result, perhaps more controversial. In interpreting “at issue” waiver, many courts have adopted some permutation of the standard articulated by the U.S. District Court for the Eastern District of Washington in Hearn v. Rhay, in which the Court concluded that implied waiver should be found when three conditions exist:
Goldman had the following advice for condominium and HOA boards: “As new security technologies are created and their use across the country becomes more prevalent, condominium associations should be sure to understand the ramifications involved with providing security to unit owners and visitors.
But there were stairs that lead to the deck and the condominium documents were written incorrectly and said the deck was open to everyone. “Next to the roof deck was the skylight to the master bedroom in the penthouse unit.
Security is a major issue for condominium communities today. The choice of a condominium or other communities overseen by HOAs may be made over a private home based on the desire of the potential purchaser for additional security or to have peace of mind that security concerns are being addressed on a community-wide basis.
The management company should have access and the board should have access, along with law enforcement officials. As to the condominium members the opinion is that they probably should not have open access to security recordings.
Goldman says, “Once a policy is in place with regard to security cameras, the condominium association has a duty to enforce the policy. This is because the condominium association, in installing the cameras, has created the perception that it is providing security services that a unit owner may rely upon. To protect itself, the condominium’s cameras must be properly maintained and their contents reviewed on a regular basis.”