3rd Circuit Says Lawyers' Involvement in 'Crude' Film Wasn't a Subject-Matter Privilege Waiver

By allowing a filmmaker access to attorney-client meetings for his Crude documentary about a megabucks environmental case in Ecuador, lawyers for the plaintiffs did not create a subject-matter waiver for all privileged communications, a federal appeals court has ruled.

Reversing a lower court decision that the attorneys involved would have to provide Chevron Corp. access to a multitude of otherwise privileged material in discovery because of a subject-matter waiver, the Philadelphia-based 3rd U.S. Circuit Court of Appeals said in an opinion (PDF) yesterday that, as a matter of black-letter law, no subject-matter waiver occurred.

Since the attorney-client meetings filmed for the documentary were never confidential, they were never privileged, the court explains. Hence, no privilege was waived by these meetings and the issue of whether the claimed waiver of privilege, at the meetings, created an across-the-board subject-matter waiver wasn’t reached.

“Because the communications were not made ‘in confidence’ due to the presence of the Crude filmmakers, they were not privileged to begin with, and there was no privilege to waive by their disclosure,” the appeals court writes. “Accordingly, there is no justification for finding any waiver of the attorney-client privilege … on the basis of disclosures made during the filming of Crude and its outtakes, even if those disclosures were selective, given that the communications disclosed were not privileged when made.”

The court distinguishes this case from one in which an initially privileged communication is waived by subsequent communication to a third party outside the circle of confidentiality.

However, the opinion, while a clear win for the plaintiffs and their lawyers on the subject-matter waiver issue, also includes this zinger:

“We, nevertheless, will remand the matter to the district court,” the appellate panel writes, “so that it may consider the Chevron applicants‘ contention that certain communications … are discoverable pursuant to the crime-fraud exception to the attorney-client privilege.”

Hat tip: Courthouse News Service.

Related coverage:

ABAJournal.com: “Lawyer in Megabucks Chevron Enviro Case Must Turn Over Hard Drive Mirror Images, Judge Rules”

ABAJournal.com: “Chevron Shifts Gears, Files Civil RICO Suit Against Plaintiffs”

ABAJournal.com: “2nd Cir OKs Temporary Ban on Plaintiffs’ Collection Efforts re $18B Enviro Judgment Against Chevron”

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