Just a few questions about waiver...
Why was the distinction drawn in von Bulow II between
extrajudicial disclosure of privileged material, which does not
constitute waiver of all privileged communications, and partial
disclosure in judicial proceedings, which can constitute waiver of the
2. The doctrine of waiver through
putting in issue is intended to keep someone from using the privilege
selectively to create a one-sided picture by revealing only positive
attorney-client communications and asserting the privilege with respect
to negative communications. Once the issue of attorney-client
communications has been brought up, everything is put in the open to
get a balanced view of the matter. But doesn’t the unforgiving
nature of the doctrine encourage clients to be too tight-lipped.
Isn’t some information (even one-sided information) better than no
information at all?