In re Von Bulow
828 F.2d 94 (1987)
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Rule of Law:
The extrajudicial disclosure of an attorney-client communication, which is not subsequently used in a judicial proceeding to prejudice the adversary, waives the attorney-client privilege only for the specific information that was actually disclosed, not for the undisclosed portions of the communication or for related subject matter.
Facts:
- Claus von Bulow was criminally prosecuted for allegedly injecting his wife, Martha von Bulow, with insulin, causing an irreversible coma.
- After his initial conviction, von Bulow retained attorney Alan M. Dershowitz for his appeal.
- Following von Bulow's eventual acquittal, Dershowitz, with von Bulow's knowledge and encouragement, published a book titled 'Reversal of Fortune' detailing the case.
- The book contained excerpts of conversations between von Bulow and his attorneys.
- Prior to publication, counsel for Martha von Bulow's children warned that the book would be viewed as a waiver of the attorney-client privilege, but von Bulow took no action to prevent its publication.
- After the book was released, von Bulow and Dershowitz appeared on television and radio shows to promote it.
- Martha von Bulow's children, acting on her behalf, initiated a civil suit against Claus von Bulow based on the same events as the criminal prosecution.
Procedural Posture:
- Claus von Bulow was indicted by a Rhode Island grand jury, convicted at trial, but the conviction was reversed by the Rhode Island Supreme Court.
- Upon retrial, von Bulow was acquitted of the criminal charges.
- Martha von Bulow's children, as her next friends, then sued Claus von Bulow in the U.S. District Court for the Southern District of New York for civil claims arising from the same facts.
- During discovery in the civil suit, the plaintiff moved to compel discovery of communications between von Bulow and his attorneys, arguing the book 'Reversal of Fortune' waived the attorney-client privilege.
- The district court granted the plaintiff's motion, finding a broad waiver of the privilege covering not only the disclosed conversations but all related subject matter with all of von Bulow's defense attorneys.
- Von Bulow petitioned the U.S. Court of Appeals for the Second Circuit for a writ of mandamus to direct the district court to vacate its discovery order.
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Issue:
Does the extrajudicial disclosure of privileged attorney-client communications, not used by the client in a judicial proceeding, waive the privilege for the undisclosed portions of those communications and for all other communications on the same subject matter?
Opinions:
Majority - Cardamone, J.
No. The extrajudicial disclosure of an attorney-client communication does not waive the privilege for undisclosed portions of the communication. The 'fairness doctrine,' which can broaden a waiver to include related subject matter, is designed to prevent a party from selectively disclosing information during a judicial proceeding to gain a tactical advantage. When a disclosure is made outside of court (extrajudicially) and is not subsequently used in litigation to prejudice the opposing party, the fairness concerns that justify a broad subject-matter waiver are not implicated. While the specific communications actually published in the book lose their privilege, the waiver does not extend to the unpublished remainder of those conversations or to other communications on the same subject with any of his attorneys.
Analysis:
This decision significantly limits the scope of the 'fairness doctrine' and the concept of implied waiver of the attorney-client privilege. It establishes a clear and important distinction between disclosures made within a judicial proceeding and those made extrajudicially. The ruling provides greater certainty for clients and attorneys regarding public statements, ensuring that out-of-court disclosures do not automatically trigger a broad subject-matter waiver that would expose all related confidential communications to discovery, unless those disclosures are later used as a 'sword' in litigation.
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