In both the attorney-client privilege and the work product contexts, an express waiver occurs only upon disclosure of a protected communication. Disclosing an unprotected communication does not cause a waiver, and therefore cannot trigger a dangerous subject matter waiver.
In In re Adelphia Communications Corp. Securities & Derivative Litigation, Nos. 03 MDL 1529 (LMM) & 05 Civ. 9050, 2009 U.S. Dist. LEXIS 55863 (S.D.N.Y. July 1, 2009), the Adelphia Board's Special Committee hired Covington & Burling to investigate the company's relationship with the Rigas family. When Covington & Burling issued its report, several third parties claimed that the disclosure caused a waiver, thus triggering a subject matter waiver that required production of Covington's backup documents. District Judge Lawrence McKenna properly disagreed -- noting that "[t]he disclosed materials were prepared for disclosure." Id. at *13. The court wisely analogized Covington's disclosure of its report to "the submission of a brief to a court. Such a submission hardly entitles the other side to discovery of the lawyer-author's communications with fellow lawyers or clients concerning the preparation of the brief." Id. at *13 n.3.
Companies and their lawyers should remember this common-sense principle when disclosing lawyer-prepared documents to the public, submitting "position papers" to the government, etc. Announcing that the disclosed documents were never intended to be protected makes the documents themselves vulnerable to later discovery, but avoids any risk of a subject matter waiver.