[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In U.S. v. Jones, 2025 WL 3013283 (D. Kans. Oct. 28, 2025), the court rejected both an argument that waiver of privilege was narrow, and an argument that it was broad, applying Fed.R.Evid. 502.
The court described and rejected what it called a “newfangled theory” of waiver. That theory was that numerous limited waivers had a cumulative effect and, taken together, they tipped the scale and constituted a complete waiver of the attorney-client privilege. The “snowball” theory was held to be contrary to Fed.R.Evid. 502.
The Jones court wrote that the government’s “Motion for Abrogation of Attorney-Client Privilege by Waiver… crops up in the middle of a longer story about document production in this case.” In brief summary, the government served a subpoena on a union, IBB, under Fed.R.Crim.P. 17(c), seeking nine email accounts. The union agreed to produce some information, but asserted privilege over other information. The court wrote:
Summarizing, again at a high level, the abrogation motion claims that IBB broadly has waived its attorney-client privilege. And so, the motion seeks an order “abrogating the attorney-client privilege” and “defining the scope of that waiver.”
The government’s argument was based on waiver by disclosure. A degree of waiver was undisputed. The court wrote:
So, here’s the current state of play: there’s no outstanding, formal demand obligating IBB to provide anything to the government. IBB voluntarily produced some requested documents, and the court quashed the other, opposed parts of the government’s subpoena…. But the government and [the union,] IBB agree that IBB’s release of certain communications has waived IBB’s attorney-client privilege—at least in some measure. And so, even absent any formal production demand, the government asks the court for an order that defines the scope of that waiver. [emphasis added].
The court wrote: “IBB readily agrees that it has waived the attorney-client privilege over certain communications…. But this concession hardly ends the fight. Indeed, it merely leads to more daunting questions.”
In pertinent part, the court framed the issue: “What’s the scope of IBB’s waiver of attorney-client privilege?”
The Jones court started its analysis by relying on Edna Epstein’s excellent work, Attorney-Client Privilege and the Work-Product Doctrine (ABA 6th ed. 2025). The court determined that, once waived, the waiver extends only to information concerning the same subject matter. However, the court wrote:
IBB and the government each presented—in their papers and at the hearing—an interpretation of the waiver’s scope. But both proposed interpretations wander from the law’s middle ground: IBB’s interpretation proves far too narrow and the government’s far too broad.
The Jones court found both positions to be “simply untenable,” writing that:
In other words, the four corners of a disclosed document don’t define the scope of a waiver—as IBB suggests. But neither does the scope reach all communications, all attorneys, and all allegations—as the government argues. To be sure, the waiver spreads wider than IBB suggests, but not nearly in the unbounded fashion suggested by the government. Instead, the waiver encompasses “all communications relating to the same subject matter”—but sprawls no further. Federal Rule of Evidence 502 similarly occupies this middle ground.
Under Fed.R.Evid. 502(a): “IBB and the government both diverge from this centrist approach. IBB propounds an overly restricted scope and the government an overly broad one. The right answer lies somewhere in between.”
However, the court had to address – and explicitly reject – a novel argument posited by the government. The court called it a “newfangled theory” of waiver.
To support its overly broad waiver request, the government posits a novel theory of cumulative waiver. Under its scheme, each instance of privilege waiver by IBB piles up, accumulating one on top of the other, producing what the government terms a cumulative waiver. So, when IBB waives attorney-client privilege on subject one, subject two, and subject three, for example, the waivers snowball and their critical mass produce a waiver of privilege on all subjects. According to the government’s argument at the hearing, this cumulative approach is appropriate because IBB can’t pick and choose repeatedly the subject matters over which it waives privilege. At some point, the government contends, a “cumulative effect” inheres and waives all privilege on all subjects. [emphasis added].
Notably, the court wrote: “When the court inquired at the hearing asking for any legal authority endorsing this view, the government couldn’t provide any assistance.”
The court rejected the novel theory because “the government’s cumulative effect doctrine relies on a party choosing to waive privilege on several wholly different subjects and then—at some undefined tipping point—losing privilege over all subjects, in toto. Such a proposition reinvents prevailing law, including the law our Circuit has adopted. Our court isn’t free to cast aside such precedent. What’s more, the government’s theory doesn’t make sense. The fairness doctrine that undergirds the scope of waiver analysis doesn’t support the government’s cumulative argument.”
The fairness doctrine that undergirds the scope of waiver analysis doesn’t support the government’s cumulative argument.
U.S. v. Jones, 2025 WL 3013283 (D. Kans. Oct. 28, 2025).
Applying Fed.R.Evid. 502(a)(3), the court wrote: “In sum, fairness dictates the full sphere of communications on a given subject matter must come to light. But this same fairness rationale doesn’t support the government’s cumulative effect doctrine. Fairness doesn’t require waiver of privilege for all subjects simply because a party has waived some aspects of its privilege. Indeed, such a sweeping interpretation of waiver would inhibit fairness considerably. It would force the disclosing party to make an all-or-nothing decision, thereby kneecapping viable arguments allowed by a more circumspect waiver doctrine. Thus, neither prevailing law—nor the fairness rationale that justifies it—supports the government’s cumulative effect theory. And so, the court rejects it here.”
The Jones court then applied these principles to the documents before it.
The Jones court also addressed another hot topic, whether the defendants waived privilege by sending, receiving, and storing communications with their personal attorneys on the union’s email system. However, it wrote: “Lacking information essential to the fact-finding required by these decisive factors, the court must deny this aspect of the government’s motion.” See generally Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024); Information Governance Decisions Can Carry a Big Price Tag (Feb. 23, 2022); Employer Erred by Downloading Former Employee’s Personal Email; But, Failure to Preserve it Was Not Spoliation; and, There Was a Gap in Employee Handbook Clause Permitting Employer Access Post-Termination (Oct. 6, 2024); Possession, Custody, and Control of Third-Party Personal Devices Determined by Information Governance Policies (Apr. 22, 2025); Motion to Compel Searching of BYOD Devices – Defendant’s Information Governance Policy Determined Outcome (Apr. 11, 2025).
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