On July 25, 2025, Superior Court Business Litigation Session Judge Debra A. Squires-Lee issued a significant decision regarding the attorney-client privilege and clarifying the contours of the work product doctrine in Massachusetts.
Court Establishes Boundaries of Subject Matter Waiver of Attorney-Client Privilege
The attorney-client privilege protects from discovery confidential communications between clients and their counsel undertaken for the purpose of obtaining legal advice. This privilege is typically waived, however, when otherwise privileged information is disclosed to third parties (i.e., someone who is neither the client nor the client's lawyer). Traditionally, courts found that once a privilege holder waived privilege as to some privileged material, that waiver extended to all other materials, even if not yet disclosed, concerning the same subject matter. This specter of subject matter waiver creates enormous risk for clients, leading to expensive, burdensome, multi-tiered privilege screening during discovery, while also limiting the degree to which parties might disclose certain privileged information when tactically or practically advantageous, such as to clarify issues during business negotiations.
Many courts have attempted to rein in this draconian approach to subject matter waiver by balancing the consequences of disclosure with principles of fairness. As applied, this means that if parties attempt to make selective use of some privileged information to support their claim or defense in litigation, a litigation opponent should be able to discover all privileged information on that subject to adequately test whatever assertion the privilege holder is attempting to make. By contrast, where disclosure occurs extrajudicially—that is, not for use in a litigated case—then the opposing party is not prejudiced, and so fairness does not demand a subject matter waiver.
In a matter of first impression in the Commonwealth, the Court chose to follow this approach and, thereby, limit the instances in which subject matter waiver is appropriate under Massachusetts law.
In Allen v. Christensen et al., No. 2284CV02756-BLS2, the plaintiff sued to enforce promises to carried interest and profit participation. Years before commencing litigation, he had forwarded a limited number of emails with his lawyers regarding the dispute to members of his family. Several years later, after the plaintiff filed suit, the defendants obtained these forwarded email messages in discovery. The defendants then moved to compel all the other privileged communications on the plaintiff's privilege log, arguing that by waiving the privilege as to the specific emails he forwarded, the plaintiff had effectuated a subject matter waiver of every other communication with counsel on the same topic.
The Court denied the motion to compel, embracing a leading federal case limiting subject matter waiver to judicial, rather than extrajudicial, disclosures. See In re Keeper of Recs. (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) ("Keeper") ("Claims of implied waiver must be evaluated in light of principles of logic and fairness," and "[w]here a party has not thrust a partial disclosure into ongoing litigation, fairness concerns neither require nor permit massive breaching of the attorney-client privilege."). The Court was persuaded that, if confronted with the issue, the Massachusetts Supreme Judicial Court would follow the logic and reasoning of Keeper. The Court noted that although "prejudice looms" where a party puts privileged communications at issue through a partial disclosure, the plaintiff's extrajudicial disclosure did "nothing to cause prejudice to the opposition or to subvert the truth-seeking process."
The decision is an important step in Massachusetts toward clarifying that "the extrajudicial disclosure of privileged information does not constitute an implied waiver of privileged communications on the subject matter unless the party thereafter puts the privileged information at issue or attempts to use it to his benefit in the litigation." The Court correctly noted that this approach "appropriately balances the protections of the attorney-client privilege and the requirements of fairness to both parties in litigation."
Scope of Work Product Doctrine Affirmed
In addition to clarifying the law of subject matter waiver, the Court's decision reinforced long-standing law about the scope of the work product doctrine. The defendants had also sought to compel the production of a detailed chronology that the plaintiff asserted he had prepared for counsel in anticipation of litigation. The defendants argued that there was no evidence that the chronology had been sent to counsel, and therefore that the work product doctrine did not apply. The Court disagreed, holding that "documents prepared for an attorney in anticipation of litigation are entitled to the protection of the work product doctrine even if not sent to counsel." (Emphasis added). As the Court explained, "clients can and often do prepare such chronologies to refresh their memory and assist them in conveying factual information to counsel in person or over the phone," and "[e]ven without physically providing the document to their counsel, such documents are protected."
Conclusion
Privileged communications should always be handled with great care and voluntarily disclosed only after careful consideration. The Superior Court's decision provides important clarity—and commonsense safeguards—regarding subject matter waiver and the work product doctrine in the Commonwealth.
The authors of this article represent the plaintiff in Allen v. Christensen et al., No. 2284CV02756-BLS2.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
