Judge Elizabeth A. (“Tex”) Copeland lets Anadarko Petroleum Corporation, et al., Docket No. 23018-18, filed 5/13/22, stay as privileged as USBCSDNY ordered. The Anadarkos were defendants in an Adversary Proceeding brought by a DiP in a Ch 11. There, BJ Gropper ordered that a bunch documents (hi, Judge Holmes) that the Anadarkos turned over were themselves unprotected by client-attorney (FRE 502) privilege, but that the turnover was not a waiver of subject matter privilege.

In other words, the documents could be used in litigation, but nothing else could be.

The magic word is “intentional”, when it comes to subject-matter waiver. The Anadarkos agreed that the documents themselves were unprivileged and unprotected. But handing over documents is one thing; opening the door to whatever else those documents discuss is something else.

Judge Tex Copeland: “Pursuant to Federal Rule of Evidence 502(a), Respondent [IRS] must show Petitioners intentionally waived attorney-client or work-product privilege when they submitted evidence in the Adversary Proceeding without sealing privileged documents and information. This Court considers fairness when deciding the scope of attorney-client or work-product privilege waiver, and here Respondent cannot show that Petitioners intentionally waived privilege given the broad scope of Federal Rule 502(a) and Petitioners reliance on the … Order issued in the Adversary Proceeding. Because Petitioners believed that they had preserved waiver of attorney-client and work-product privileges in the Adversary Proceeding, Petitioners’ disclosure of the Disputed Documents was an unintentional waiver of the subject matter covered by those documents. This Court, therefore, holds that Petitioners did not waive subject matter privilege as to the Disputed Documents.” Order, at p. 4.

Check out the cases Judge Tex Copeland cites in her order. Good stuff there for subject matter waiver memos.