Disclosure Of Opinions Of Counsel To Customers Waived Privilege As To The Opinions And The Subject Matter Of The Opinions

Plaintiff The Procter & Gamble Company ("Plaintiff") filed a patent infringement action against Clio USA, Inc. ("Clio"). Plaintiff moved to compel certain opinions of counsel and other documents concerning the subject matter of those opinions. In the litigation, Clio had produced to Plaintiff copies of two abridged opinions, which were marked on their face as containing privileged communications.

Clio intentionally disclosed the abridged opinions to various third parties, including Clio's co-Defendants, the co-Defendants' customers, and Plaintiff. Clio claimed that it disclosed one of the abridged opinions to co-Defendants under a common interest privilege. But Plaintiff identified documents from co-Defendant Team Technologies, Inc. ("Team Tech") showing further dissemination of counsel's opinions to retailers. For example, CVS demanded documentation of a "legal nature" to "show there is no patent infringement," and Clio responded that it would provide such documentation. Meijer requested a similar legal opinion, and a legal opinion letter was furnished to CVS.

Plaintiff asserted that these productions waived the attorney client privilege.

As the district court explained, "[b]oth the attorney-client privilege and work-product protection are waived by voluntary disclosure of private communications to third parties." New Phoenix Sunrise Corp. v. Comm'r of Internal Revenue, 408 F. App'x 908, 918 (6th Cir. 2010); In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996) ("By voluntarily disclosing her attorney's advice to a third party, for example, a client is held to have waived the privilege because the disclosure runs counter to the notion of confidentiality").

Further, once a party waives the attorney-client privilege with respect to some items, that waiver extends beyond those items to all other communications relating to the same subject matter. Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005) ("The widely applied standard for determining the scope of a waiver of attorney-client privilege is that the waiver applies to all other communications relating to the same subject matter").

Clio contended that disclosure of the abridged opinions to their customers and to Plaintiff's counsel did not waive the privilege because the documents were allegedly "summary letter[s]." The district court disagreed. "In reality, however, the four-page abridged opinions reveal counsel's detailed legal analysis...