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Delaware Court Holds Privilege May Be Waived for Communications Put "At-Issue" in Insurance Coverage Dispute

May 31, 2018

It is a familiar adage that privilege cannot be used as both a “sword and shield” in litigation. Normally, the attorney-client privilege protects the communications between a client and an attorney acting in a professional capacity. A party can waive the attorney-client privilege, however, when that party places an otherwise privileged communication “at issue” in the litigation. Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del. 1995) (citing 8 John H. Wigmore, Evidence in Trials at Common Law § 2327 (J. McNaughton rev. ed. 1961)). To determine whether communications have been placed at issue, courts must consider whether “(1) a party injects the privileged communications themselves into the litigation, or (2) a party injects an issue into the litigation, the truthful resolution of which requires an examination of confidential communications.” Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010) (citation omitted). These exceptions promote fairness by not allowing a party to use the privilege both offensively and defensively, as both a sword and a shield.Tackett, 653 A.2d at 259.

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