Where the attorney-client and work product privileges are waived, are the privileges waived as to all communications and matters or limited to just the subject of the waivers? The Ninth Circuit ruled in Hernandez v Tanninen, No 09-35085 (May 12, 2010), that the privileges were waived only as to the subject matter of the waiver.
Rolando Hernandez, a fire department employee, filed suit against the City of Vancouver and a supervisor, Mark Tanninen, alleging claims of race and national origin discrimination. He was initially represented by attorney Gregory Ferguson. Before suit was filed, Ferguson interviewed Tanninen, who corroborated Hernandez's claims and agreed to provide a signed statement. Tanninen, however, backed up and then said he would be involved because of loyalty to the employer and the fire department. Ferguson, realizing that he would likely be a witness, then had to refer Hernandez to another lawyer, who filed suit on his behalf and added a claim of conspiracy to cover up wrongdoing in the fire department.
During discovery Hernandez produced a privilege log listing 35 documents privileged by either the attorney-client privilege or work product privilege or both. In response to the city's motion for summary judgment, Hernandez submitted his own affidavit, an affidavit from Ferguson and some of Ferguson's hand-written notes from his interviews of Tanninen. The city later moved to compel production of Ferguson's entire file, arguing that "because Hernandez relied on Ferguson as a witness to Tanninen's conduct, fairness mandated that any privilege that was once existed with respect to Ferguson was waived entirely." The district court agreed and ordered Ferguson's entire file produced.
The Ninth Circuit reversed and ruled that the privileges were waived only with regard to the subject matter of the communications and materials actually disclosed or the subject of testimony. The waiver of the attorney-client privilege by Hernandez reached only "his communications with Ferguson about Tanninen." As to the work product privilege, "Hernandez produced notes from Ferguson's communications with Tanninen that were protected work product, [but] that constituted a waiver of work product privilege only as to that subject." In sum, "the district court clearly erred in finding a blanket waiver of the attorney-client and work product privileges as to the entire case."
