The crucial issue of how to diagnose waiver of the Attorney-Client Privilege was treated in a recent Florida Bad Faith action: Teachers Insurance Co. v. Loeb, 75 So. 3d 355, 2011 WL 5842796 (Fla. 1st DCA November 22, 2011), Download Teachers Insurance Co. v. Loeb (Fla. 1st DCA Case No. 1D11.3047, Opinion Filed November 22, 2011) PUBLIC ACCESS.
In the Deposition of the Defendant Insurance Company's Corporate Representative in that case, two issues of potential waiver of the privilege were in contention. The same test was applied to both issues. On one issue, the deponent "disclosed confidential communications" about a certain matter and so he thereby "created a limited waiver of the attorney-client privilege as to that issue." 75 So. 3d at 356.
On the second issue, the Corporate Representative did not "disclose any specific discussions with counsel as to this issue, and his admission that the issue was discussed with counsel is insufficient to support a waiver of the privilege." Id.
There you have it from the Florida Appellate Court's own brief opinion in this case. Where there is "disclosure of confidential communications about" a matter, a witness can thereby make "a limited waiver of the attorney-client privilege as to that issue." Where instead a witness does not "disclose any specific discussions with counsel" as to an issue, then "his admission that the issue was discussed with counsel," standing alone, "is insufficient to support a waiver of the privilege."
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