Ghio v. Liberty Ins. Underwriters, Inc.

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WILLIAM GHIO v. LIBERTY INSURANCE
UNDERWRITERS, INC.
(AC 44127)
Bright, C. J., and Alexander and Bishop, Js.

Syllabus

The plaintiffs in error, four individual insureds, filed a writ of error, challeng-
ing a discovery order issued by the trial court finding that the insureds
had waived the attorney-client privilege as to all communications con-
cerning the merits of the claims of the plaintiffs in the underlying action,
W and J. In a prior action, W and J brought a claim against the insureds
and their company, B Co., which owned an insurance policy issued by
the defendant in error, L Co., which provided liability coverage for B
Co. and its directors and officers. Pursuant to the policy, L Co. paid the
costs of defending against W and J’s action. Thereafter, L Co. denied
that the policy provided coverage for any judgment in that action, and
the insureds entered into a stipulated judgment assigning their rights
under the policy to W and J and directed their attorney, E, to provide
W and J with copies of all communications with L Co. regarding coverage
under the policy, redacted as necessary to protect the attorney-client
privilege. W and J then brought the underlying action against L Co.,
seeking to enforce the stipulated judgment, during which they served
on L Co. a discovery request seeking all communications between L Co.
and E regarding the prior action against the insureds. After L Co.
informed W and J that the responsive documents were protected by the
attorney-client privilege, the court held a discovery conference and
ordered L Co. to produce all communications between L Co. and E
that constituted statements of fact or related to the issue of insurance
coverage. The insureds reviewed and redacted portions of the relevant
documents and instructed L Co. as to which documents to withhold
entirely, and L Co. provided the redacted documents and a privilege log
to W and J. Thereafter, W and J filed a motion for summary judgment
in the underlying action, in which they relied on certain privileged
communications between E and L Co., which E had disclosed to them
pursuant to the stipulated judgment in the prior action. Subsequently,
L Co. notified the insureds that it would seek the court’s permission to
produce and disclose all communications between it and E regarding
the merits of W and J’s claims in the prior action to defend itself in the
underlying action because the insureds had waived the attorney-client
privilege by producing some communications on the same subject. Coun-
sel for the insureds requested that L Co. identify specific documents
that allegedly constituted waiver of that privilege, and L Co. identified
six documents, two of which had been used in the motion for summary
judgment. At a hearing on the privilege issue, the court, which noted
that it had limited time to hear argument on the issue, concluded that
the documents E provided to W and J waived the privilege, basing its
decision solely on brief excerpts of documents read by L Co.’s attorney
during the hearing without conducting an in camera review of the undis-
closed documents to determine which were encompassed by the subject
matter waiver. The court subsequently denied the motion for reconsider-
ation filed by the insureds, and they filed a writ of error. Held:
1. Because the subject matter waiver rule is consistent with Connecticut’s
precedent and is based on the same fairness principle supporting the
implied waiver rule, this court adopted it as the law in this state: the
voluntary disclosure of a privileged attorney-client communication con-
stitutes a waiver of the privilege as to all other communications concern-
ing the same subject matter when the trial court has determined that
the waiver was intentional and that fairness dictates that the disclosed
and undisclosed communications be considered together; moreover,
where a party asserts that the rule applies on the basis of disclosed
communications, the court must review the relevant disclosed and undis-
closed communications to determine whether a waiver has occurred
and, if so, must determine the scope of that waiver through a fact
intensive inquiry into the nature of the communications.
2. The trial court erred in not holding an evidentiary hearing and reviewing
the communications in question:
a. The trial court abused its discretion in failing to review the actual
documents on which the claim of waiver was based: given the parties’
conflicting positions regarding the importance of the documents at issue,
the court was required to review the relevant communications before
issuing its ruling finding that the insureds had waived the privilege as
to all communications regarding E’s analysis of W and J’s claims; more-
over, if the court, following a review of the documents, determines that
there had been a subject matter waiver, it would need to conduct an in
camera review of the claimed privileged documents to determine which
documents were covered by the waiver and should be produced; accord-
ingly, this court remanded the case for an evidentiary hearing.
b. Because this court found error and remanded the case for an eviden-
tiary hearing, it addressed the claims of the insureds likely to arise
on remand: because not all of the communications were disclosed in
compliance with a court order, on remand, the trial court was required
to determine which privileged communications were voluntarily dis-
closed by the insureds and whether fairness requires that the voluntarily
disclosed communications and any undisclosed communications regard-
ing the same subject matters be considered together; moreover, because
L Co. produced only those communications authorized by the insureds,
which they had reviewed and redacted, its actions did not neglect its
duty to protect the attorney-client privilege and its productions of com-
munications could have constituted a subject matter waiver of the
insureds’ privilege; furthermore, although the insureds were not parties
to the underlying action, they had an interest in the action notwithstand-
ing their lack of status and, therefore, the subject matter waiver rule
may properly be applied to them.
Argued December 2, 2021—officially released May 31, 2022

Procedural History

Writ of error from orders of the Superior Court in
the judicial district of Hartford, Moukawsher, J., ruling
that the plaintiffs in error had waived the attorney-client
privilege as to certain discovery materials and denying
their motion for reconsideration, brought to the
Supreme Court and transferred to this court. Writ
granted; further proceedings.
Proloy K. Das, with whom were Erik H. Beard, and,
on the brief, Kevin W. Munn and Rachel Snow Kind-
seth, for the plaintiffs in error (Paul Pendergast et al.).
Ronald P. Schiller, pro hac vice, with whom were
Bonnie M. Hoffman, pro hac vice, and Elizabeth M.
Cristofaro, for the defendant in error (Liberty Insurance
Underwriters, Inc.).
Opinion

BRIGHT, C. J. With this writ of error, the plaintiffs
in error, Paul Pendergast, J. Reid Gorman, Carlos Silva,
and Charles Cox (insureds), challenge a discovery order
issued in the underlying action, which was brought by
William Ghio and Janet Ghio (collectively, the Ghios)
against the defendant in error, Liberty Insurance Under-
writers, Inc. (Liberty).1 In a prior action, the Ghios set-
tled their claims against the insureds and brought the
underlying action against Liberty, which had issued an
insurance policy to the insureds. Relevant to this writ
of error, in the underlying action the Ghios sought the
production of all communications between Liberty and
the attorney who represented the insureds in the prior
action, and the insureds instructed Liberty as to which
of those communications to withhold as protected by
the attorney-client privilege. Liberty, wishing to use cer-
tain of the designated privileged documents to defend
itself in the underlying action, claimed that the insureds
waived the privilege as to all communications concern-
ing the merits of the Ghios’ claims by selectively disclos-
ing to the Ghios privileged communications on that
subject. The trial court agreed and found that the
insureds had waived the privilege as to all communica-
tions concerning the merits of the Ghios’ claims, clear-
ing the way for Liberty to use those communications
in the underlying action.
In this writ of error, the insureds claim that the court
improperly concluded that they waived the attorney-
client privilege because (1) the communications were
produced pursuant to a court order, (2) Liberty had a
duty to preserve the privilege and, therefore, could not
have waived the insureds’ privilege by producing the
communications, and (3) the court abused its discretion
in finding that the privilege was waived without holding
an evidentiary hearing or reviewing the relevant com-
munications. We agree with the insureds’ final claim
and, accordingly, grant the writ of error and remand
the case for an evidentiary hearing.
The record reveals the following facts and procedural
history. The Ghios invested in the insureds’ company,
Back9 Network, Inc. (Back9), which owned an insur-
ance policy issued by Liberty providing liability cover-
age for Back9 and its directors and officers (policy).
In 2015, the Ghios brought an action against Back9 and
the insureds, asserting claims related to their invest-
ment in Back9. Attorney Joshua Berman represented
the insureds, and Liberty, pursuant to the policy, paid
the insureds’ costs of defending against the Ghios’
claims.
In October, 2018, shortly before the scheduled trial,
Attorney R. Stacy Lane, Liberty’s coverage counsel,
notified Berman that Liberty denied that the policy pro-
vided coverage for any judgment in the Ghios’ action.
After receiving Lane’s letter, the insureds and the Ghios
entered into a stipulated judgment agreeing that judg-
ment would enter for the Ghios in the amount of
$1,901,056 and that the Ghios would seek to enforce
the judgment against Liberty only. The court, Graham,
J., rendered judgment in accordance with the parties’
agreement. Pursuant to the judgment, the insureds
assigned their rights under the policy to the Ghios and
directed Berman to provide the Ghios with copies of
all communications with Liberty regarding coverage
under the policy, redacted as necessary to protect any
applicable privilege.
In December, 2018, the Ghios brought the underlying
action against Liberty2 pursuant to General Statutes
§ 38a-321.3 In their three count amended complaint, the
Ghios sought to enforce the stipulated judgment and
alleged that Liberty had acted in bad faith and violated
the Connecticut Unfair Insurance Practices Act, Gen-
eral Statutes § 38a-815 et seq. Liberty filed an answer
and special defenses, as well as a counterclaim seeking
a declaratory judgment that it does not have an obliga-
tion to pay the judgment against the insureds.
During discovery, the Ghios served on Liberty a request
for production, seeking all communications between
Liberty and Berman regarding the prior action against
the insureds. After consulting with the insureds, Liberty
informed the Ghios that the insureds claimed that the
responsive documents in Liberty’s possession were pro-
tected by the attorney-client privilege. On August 6,
2019, after a discovery conference, the court, Mou-
kawsher, J., ordered Liberty to produce all communica-
tions between Liberty and Berman that are statements
of fact or relate to the issue of insurance coverage. There-
after, the insureds reviewed the relevant documents,
redacted portions of those documents, and instructed
Liberty as to which documents to withhold entirely.
Liberty complied with the insureds’ instruction and pro-
vided the documents and a privilege log to the Ghios.
On November 25, 2019, the Ghios moved for summary
judgment on the first count of their amended complaint
seeking to enforce the stipulated judgment. In that motion,
the Ghios relied on certain privileged communications
between Berman and Lane in support of their argument
that the settlement was reasonable. As acknowledged
by the insureds in their brief to this court, Berman dis-
closed three of those communications to the Ghios
pursuant to the stipulated judgment in the prior action.
In a February 7, 2020 e-mail, Attorney Bonnie Hoffman,
counsel for Liberty, notified the insureds that Liberty
would seek the court’s permission to produce and dis-
close all communications between Berman and Liberty
regarding the merits of the Ghios’ claims in the prior
action because the insureds had waived the attorney-
client privilege by producing some communications on
the same subject. Hoffman claimed that Liberty was
entitled to use these communications to defend itself
in the underlying action because the Ghios had relied
on some of Berman’s communications regarding the
merits of the prior action in their motion for summary
judgment. In response, Attorney Erik Beard, counsel
for the insureds, requested that Hoffman identify the
specific documents that she asserted constituted waiver
of the privilege, and Hoffman identified six documents,
two of which had been included in the Ghios’ motion
for summary judgment.
At a March 6, 2020 hearing, the court heard argument
on several matters, including the Ghios’ motion to strike
Liberty’s counterclaim and the privilege issue. At the
outset of the hearing, the Ghios’ attorney noted that
the court had a limited amount of time because it was
presiding over a trial that morning, and the court pro-
ceeded to hear the parties on the motion to strike.
Before turning to the claimed waiver of the attorney-
client privilege, the court stated, ‘‘Let’s try to move as
quickly as we can because I’m running short of time.’’
Attorney Ronald P. Schiller, counsel for Liberty, pro-
ceeded to argue that the privilege had been waived
because the insureds disclosed some of Berman’s com-
munications with Liberty regarding the merits of the
Ghios’ claims in the prior action but claimed that other
communications on the same subject were privileged.
In addition, Schiller claimed that Berman’s communica-
tions regarding the merits of the Ghios’ claims in the
prior action had been put at issue in the underlying
action because the Ghios are ‘‘saying [Liberty was]
unreasonable and they’re relying on Berman’s commu-
nications that he did share with them. And so, yes, it
bleeds into the waiver issue, but it also bleeds into what
they’re relying on, Your Honor . . . .’’
On behalf of the insureds, Beard denied that any
waiver occurred and claimed that the only documents
identified by Liberty as constituting waiver ‘‘were docu-
ments relating to coverage issues, exclusively. They
were the back and forth in October, 2018, between
Liberty . . . and Attorney Berman about the declina-
tion of coverage letters and the positions that were
taken.’’ The court then engaged in the following exchange
with Schiller and Beard:
‘‘The Court: Okay, can I stop you right there so that
we can see—is there a perfect example in terms of the
document—
‘‘[Schiller]: Yes.
‘‘The Court: —of what you claim Berman did to waive
the privilege?
‘‘[Schiller]: Yes.
‘‘The Court: Just give me a document and tell me
what it says.
‘‘[Schiller]: Yes, Your Honor, and I have a notebook
where we have the documents at issue, and it’s not just
the six . . . .
‘‘The Court: Well, I just want one.
‘‘[Schiller]: Okay.
‘‘The Court: Can you . . . just give me your very best
one that would say Berman provided . . . a document
that shows his advice and it—and it opens the door?
‘‘[Schiller]: Okay. And to be clear, this is post Beard’s
redacting and what he redacted were sometimes things
that were just critical of judges or critical of [the Ghios’
attorney]. They were—they did not go to the merits
. . . .
‘‘[A]nd I don’t have a Bates number, so I’m going to
give you the e-mail date and time.
‘‘The Court: Yeah just tell me what it says. That’s
what I’m more interested in.
‘‘[Schiller]: Okay. It’s Joshua Berman to Eileen Levi-
ton. She’s at Liberty LIU, dated September 26, 2017: ‘It
pains me to offer [the Ghios] a single red cent in
response to their extortionate and unsupportable legal
claim.’ There’s a reference to the demand. ‘The guy has
no case and is making offers like this,’ referring to a
demand from [the Ghios’ attorney].
‘‘The Court: All right. I—that’s enough.
‘‘[Schiller]: ‘The offer should be a nonstarter.’
‘‘The Court: I—I heard it.
‘‘[Beard]: Two—two things, actually.
‘‘The Court: How can you argue that that isn’t about
the merits?
‘‘[Beard]: Two things, Your Honor, actually.
‘‘The Court: Yeah.
‘‘[Beard]: That particular e-mail that he is reading,
and he’s not putting it in context, was a coverage dispute
about whether [defending] a motion for sanctions
would be covered by Liberty . . . .
‘‘The Court: But whatever it does, it—it is the lawyer’s
statements about the—the quality of the case.
‘‘[Beard]: And—and Your Honor, I will not dispute
that if that is deemed privileged information, that one
sentence, then it’s waived, it’s out there; but that does
not open the door under—
‘‘The Court: Well, not the sentence, it’s the topic; in
other words, if—if what’s going to happen is that—that
certain evidence is going to come in where Attorney
Berman makes his statements concerning the relative
strengths and weaknesses of the case as that does, then
why don’t they all come in?
‘‘[Beard]: Because, Your Honor, if you look at [In re
von Bulow, 828 F.2d 94 (2d Cir. 1987] out of the Second
Circuit, which is a case that deals with this idea of
subject matter and implied waiver. What the—what that
case says, and it’s been cited by a lot of Connecticut
court cases, but what that case says is when a—when
the disclosure is made not to—essentially to use the—
the language earlier, not to yield a sword and a shield.
‘‘So, we did not disclose anything in this case as a
party to this case. We’re not disclosing it to produce—
to prove a claim that we have in this case. We’re not
disclosing it to—or withholding anything to prevent
somebody else from hurting—helping their claim or
defense.
‘‘The Court: Well—well, wait a minute, let me stop
you there, because what—I mean, in other words, you—
the insured, the Back9 insureds made a deal with [the
Ghios], and now they’re saying, ‘Well, maybe we didn’t
make such a good deal.’
‘‘And Berman’s saying, ‘You know, here’s some stuff,
you can use this.’
‘‘And now, Liberty’s saying, ‘You give [them]—sent
[them] some things to help [their] case, then you got
to give us everything.’
‘‘[Beard]: They—
‘‘The Court: That’s their argument. . . .
‘‘[Beard]: I still maintain the stuff that was given to
them, except for very conclusory language, which by
the way, Your Honor, every lawyer in the world when
negotiating a case says to the other side, ‘Your case
has no merit. Your case isn’t worth what you think
it’s worth.’
‘‘The Court: Is this an e-mail to the other side?
‘‘[Beard]: No, no—
‘‘[Schiller]: No, this was to Liberty on Berman’s
assessment.
‘‘[Beard]: My point—
‘‘[Schiller]: And just, Your Honor, there are dozens
of these. There’s literally no viable case. Plaintiff’s coun-
sel is milking his client for every penny he can in fees
and he’s showing no signs of discontinuing the non-
claim. On the contrary, his tactic is to litigate as vexa-
tious[ly] as possible for the sole purpose of extorting
money from Liberty. I have dozens of—
‘‘The Court: This is an e-mail delivered to Liberty.
‘‘[Schiller]: Yes.
‘‘The Court: So it’s not to the other side.
‘‘[Beard]: That’s my point, though, is, Your Honor, is
that worst case scenario, we say something like that
to the other side in a litigation, nobody claims that that
statement means that it opens up the door for all the
underlying internal analysis of the lawyer. No plaintiff’s
lawyer would ever come into court and say, ‘Your
Honor, in our settlement negotiations, they told me that
I don’t have a case. Therefore, I get to know everything
that led to that conclusion.’ That’s not the case. But
back to . . . Your Honor’s point . . . these disclo-
sures were made in an extrajudicial context as to . . .
the Back9 insureds. We’re not a part [of] this case. We
complied with the court’s order to produce coverage
information and statements of fact.
‘‘The Court: Well, you were a witness claiming, appar-
ently, attorney-client privilege as a reason that you don’t
have to produce documents.
‘‘[Beard]: That’s correct.
‘‘The Court: And then I’m confronted with a situation
where the claim is, and it seems to be supported, that
you gave some of the documents to the other side in
the case, and now you want to . . . not give them to
Liberty.
‘‘[Beard]: We did not give to the other side any docu-
ments that, for example, delve into the—the analysis
of the legal strengths and weaknesses of the case. We
did not give [the Ghios] anything other than . . . Schil-
ler . . . has represented to the court. And I will also
add that if he’s about to bring out an entire notebook,
I did ask for that information and I got six e-mails.
That’s what I got.
‘‘[Schiller]: He has the notebook, Your Honor. He’s
the one who went through them and took out all the
disparaging—
‘‘The Court: All right.
‘‘[Schiller]: And Your Honor, just the point is, we have
these documents. They cherry-picked a small group of
documents from one period of time where they say,
‘Hey Liberty, you have to settle this case now,’ because
they cut a deal with [the Ghios], or because they wanted
to cut a deal with [the Ghios]. And those documents
say, and [the Ghios are] going to use them as [they]
have a right to, but now they don’t want me to use the
rest of them and [they have] all these documents.’’
Before hearing from the Ghios’ attorney, the court
noted that it was ‘‘right about out of time.’’ The Ghios’
attorney then explained, ‘‘We’ve had all kinds of discov-
ery, we’ve had motions for summary judgment filed
with all of the essentials of those summary judgments
being teed up, and now they want to revisit discovery.
And I don’t even know that I got the e-mails that counsel
is referring to.’’
The court allowed Beard to offer closing remarks, and
the following exchange occurred:
‘‘[Beard]: [W]e have . . . a real tangible concern
about whether or not this throws the door open to all
of the underlying analyses of the legal strengths and
weaknesses of the [Ghios’] case, and what [their attor-
ney] said at the beginning of today’s hearing only under-
scores it, which is he’s not ruling out the fact that if
things don’t go his way in this case, he’s going to come
back and try to drag my clients back into court on the
underlying case. And if all of this comes out, suddenly
he’s got the entire roadmap for everything that we were
going to do in the underlying case.
‘‘The Court: Perhaps Berman should’ve thought care-
fully about that possibility before he started providing
documents to the [Ghios] here.
‘‘[Beard]: Well—but, Your Honor, the documents, as I
said, that we provided were either coverage documents
which I would argue are not privileged.
‘‘The Court: Look, it’s already established that that’s
not the limit of them.
‘‘[Beard]: Or . . . they were conclusory documents
that to the extent of what was said is waived; but as
the Second Circuit in the von Bulow case says, the
stuff that was not disclosed remains confidential and
privileged because we are not a party to this case,
period.’’
After hearing from Hoffman, Liberty’s cocounsel,
regarding Liberty’s delay in raising the waiver issue,
the court issued its ruling, stating: ‘‘I am convinced by
what I have heard today, in particular the nature of
the documents that were disclosed to the [Ghios] by
Attorney Berman, that it discusses the substance of
. . . the analysis that he gave with respect to the merits
of the other case; and once you open that door to certain
of his comments, you’re bound to provide the rest of
them as well. It would simply be, and this is the basic
guide, an injustice here to allow one side to have a
selected number of . . . those comments and not
allow the other side to have them.
‘‘I suggest in this instance a specific written order is
appropriate, so I’d ask [Liberty] to provide a proposed
order for me to execute.’’ Although the court never
issued a written order, it signed the transcript of its
oral decision after this writ of error was filed.
It is clear from our review of the transcript that the
court never reviewed the notebook of documents on
which Liberty relied for its claim of waiver or the six
documents that were exchanged between Beard and
Hoffman when Hoffman first raised the waiver issue.
Instead, it appears that the court based its decision
solely on the brief excerpts read aloud by Schiller at
the hearing. The court also did not conduct an in camera
review of the undisclosed documents to determine
which were encompassed by the subject matter waiver.
The insureds filed a motion for reconsideration and
a supporting memorandum of law, claiming that the
court’s discovery order ‘‘was premised on several mis-
apprehensions of fact’’ and that the court ‘‘failed to
consider critical legal authority’’ in issuing its ruling.
Specifically, the insureds claimed that, at the March 6,
2020 hearing, Schiller improperly read and relied on
redacted portions of one of the e-mails that the insureds
had produced in response to the court’s August 6, 2019
discovery order. As to that excerpt, the insureds argued
that they could not be found to have waived the privilege
when they specifically instructed Liberty to withhold
as privileged the precise language Schiller improperly
read at the hearing. The insureds further maintained
that the only communications actually disclosed con-
cerned coverage issues and invited the court to conduct
an in camera review of the relevant documents. They
further claimed that the disclosures at issue were made
in an extrajudicial context and, therefore, that under
In re von Bulow, supra, 828 F.2d 102–103, a broad
subject matter waiver was inappropriate.4
Liberty filed an objection, explaining that, before
reading from the redacted e-mail, Schiller informed the
court that he was referencing a document that had been
redacted by the insureds. Liberty further explained that
Schiller then read a portion of a second e-mail from
Berman to Liberty, which had been provided to the
Ghios pursuant to the court’s discovery order, to dem-
onstrate the claimed waiver. We note that neither of
these e-mails was included in the Ghios’ motion for
summary judgment. Liberty also denied that the
insureds’ disclosures occurred in an extrajudicial con-
text, noting that the insureds had disclosed communica-
tions pursuant to the stipulated judgment in the prior
action before disclosing additional communications
pursuant to the court’s August 6, 2019 discovery order.
Liberty emphasized that, in In re von Bulow, supra, 828
F.2d 102, the Second Circuit Court of Appeals distin-
guished disclosures made in a trial setting from extraju-
dicial disclosures and held that ‘‘extrajudicial disclosure
of an attorney-client communication—one not subse-
quently used by the client in a judicial proceeding to
his adversary’s prejudice—does not waive the privilege
as to the undisclosed portions of the communication.’’
On May 4, 2020, the court issued an order denying
the motion for reconsideration, stating: ‘‘The court agrees
with and adopts the reasoning of the objection to the
motion. The court understood the facts and applied
the applicable law in making its ruling. Its ruling was
correctly aimed at preventing a party to this litigation
from offering an attorney’s advice as evidence selec-
tively, offering the advice that favors the current claim
while opposing the discovery of other advice from the
same source that might disfavor the current claim.’’
This writ of error followed.
I
As a threshold matter, because neither this court nor
our Supreme Court has considered the applicability
of the subject matter waiver rule, we must determine
whether the court properly concluded that the rule
applies in Connecticut. For the reasons that follow, we
adopt the subject matter waiver rule.
We first set forth our standard of review. ‘‘Whether
the trial court properly concluded that there is an excep-
tion to the attorney-client privilege . . . and, if so,
whether it properly delineated the scope and contours
of such an exception, are questions of law. . . .
Accordingly, our review of these issues is plenary.’’
(Citation omitted.) Hutchinson v. Farm Family Casu-
alty Ins. Co., 273 Conn. 33, 38, 867 A.2d 1 (2005).
The subject matter waiver rule provides that the ‘‘vol-
untary disclosure of the content of a privileged attorney
communication constitutes waiver of the privilege as
to all other such communications on the same subject.
. . . Under this rule, disclosure of information resulting
in the waiver of attorney-client privilege constitutes
waiver only as to communications about the matter
actually disclosed.’’ (Citations omitted; internal quota-
tion marks omitted.) United States v. Sanmina Corp.,
968 F.3d 1107, 1117 (9th Cir. 2020). ‘‘The purpose under-
lying the rule of partial disclosure is one of fairness to
discourage the use of the privilege as a litigation weapon
in the interest of fairness. A party should not be permit-
ted to assert the privilege to prevent inquiry by an
opposing party where the professional advice, itself,
is tendered as a defense or explanation for disputed
conduct.’’ Zirn v. VLI Corp., 621 A.2d 773, 781–82
(Del. 1993).
‘‘Courts have characterized this reasoning as the
sword and the shield approach, in that a litigant should
not be able to disclose portions of privileged communi-
cations with his attorney to gain a tactical advantage
in litigation (the sword), and then claim the privilege
when the opposing party attempts to discover the undis-
closed portion of the communication or communica-
tions relating to the same subject matter.’’ (Internal
quotation marks omitted.) Center Partners, Ltd. v.
Growth Head GP, LLC, 981 N.E.2d 345, 357 (Ill. 2012).
The subject matter waiver rule is applied uniformly
in the federal courts pursuant to rule 502 (a) of the
Federal Rules of Evidence, which provides, ‘‘[w]hen the
disclosure is made in a federal proceeding or to a federal
office or agency and waives the attorney-client privilege
or work-product protection, the waiver extends to an
undisclosed communication or information in a federal
or state proceeding only if: (1) the waiver is intentional;
(2) the disclosed and undisclosed communications or
information concern the same subject matter; and (3)
they ought in fairness to be considered together.’’ The
advisory committee notes to rule 502 (a) explain that
‘‘a subject matter waiver (of either privilege or work
product) is reserved for those unusual situations in
which fairness requires a further disclosure of related,
protected information, in order to prevent a selective
and misleading presentation of evidence to the disad-
vantage of the adversary.’’5
‘‘In Connecticut, the attorney-client privilege protects
both the confidential giving of professional advice by
an attorney acting in the capacity of a legal advisor to
those who can act on it, as well as the giving of informa-
tion to the lawyer to enable counsel to give sound and
informed advice. . . . The privilege fosters full and
frank communications between attorneys and their cli-
ents and thereby promote[s] the broader public inter-
ests in the observation of law and [the] administration
of justice. . . . The privilege applies, however, only
when necessary to achieve its purpose; it is not a blanket
privilege.’’ (Citation omitted; internal quotation marks
omitted.) State v. Kosuda-Bigazzi, 335 Conn. 327, 342,
250 A.3d 617 (2020).
‘‘Exceptions to the attorney-client privilege should
be made only when the reason for disclosure outweighs
the potential chilling of essential communications.’’
Metropolitan Life Ins. Co. v. Aetna Casualty & Surety
Co., 249 Conn. 36, 52, 730 A.2d 51 (1999); see also
Ullmann v. State, 230 Conn. 698, 713, 647 A.2d 324
(1994) (because ‘‘the privilege has the effect of with-
holding relevant information from the factfinder, it
applies only where necessary to achieve its purpose’’
(internal quotation marks omitted)).
It is well established that ‘‘voluntary disclosure of
the content of a privileged communication constitutes
waiver of the privilege.’’ (Internal quotation marks omit-
ted.) State v. Taft, 258 Conn. 412, 421, 781 A.2d 302
(2001). The privilege belongs to the client and may be
waived only by the client or his attorney acting with
the client’s authority. See Gebbie v. Cadle Co., 49 Conn.
App. 265, 274, 714 A.2d 678 (1998). ‘‘[I]f the holder of
the privilege fails to claim his privilege by objecting to
disclosure by himself or another witness when he has
an opportunity to do so, he waives his privilege as to
communications so disclosed. . . . This result is
reached because once the confidence protected has
been breached, the privilege has no valid continuing
office to perform.’’ (Citation omitted; internal quotation
marks omitted.) Id.
Although there is no appellate authority in this state
applying the subject matter waiver rule, our Supreme
Court has recognized the related doctrine of implied
waiver, which is founded on the same fairness consider-
ations justifying the subject matter waiver rule. See
Metropolitan Life Ins. Co. v. Aetna Casualty & Surety
Co., supra, 249 Conn. 52–53. The implied waiver rule
‘‘is invoked only when the contents of the legal advice
is integral to the outcome of the legal claims of the
action. . . . Such is the case when a party specifically
pleads reliance on an attorney’s advice as an element
of a claim or defense, voluntarily testifies regarding
portions of the attorney-client communication, or spe-
cifically places at issue, in some other manner, the
attorney-client relationship. In those instances the party
has waived the right to confidentiality by placing the
content of the attorney’s advice directly at issue
because the issue cannot be determined without an
examination of that advice.’’ (Citation omitted; foot-
notes omitted.) Id.
The implied waiver rule ‘‘rest[s] on the fairness princi-
ple, which is often expressed in terms of preventing a
party from using the privilege as both a shield and a
sword. . . . In practical terms, this means that parties
in litigation may not abuse the privilege by asserting
claims the opposing party cannot adequately dispute
unless it has access to the privileged materials.’’ (Inter-
nal quotation marks omitted.) United States v. San-
mina Corp., supra, 968 F.3d 1117; see also People v.
Trujillo, 144 P.3d 539, 543 (Colo. 2006) (‘‘[t]he rationale
for an implied waiver . . . is that the law will not per-
mit a client to use as a sword the protection which is
awarded him as a shield’’ (internal quotation marks
omitted)).
As the Second Circuit Court of Appeals has explained,
the ‘‘subject matter waiver [rule] . . . is simply another
form of the waiver by implication rule . . . . Like the
implied waiver, the subject matter waiver also rests on
the fairness considerations at work in the context of
litigation. . . .
‘‘For this reason, it too has been invoked most often
where the privilege-holder has attempted to use the
privilege as both a sword and a shield or where the
attacking party has been prejudiced at trial.’’ (Citation
omitted; internal quotation marks omitted.) In re von
Bulow, supra, 828 F.2d 102–103; see also In re Keeper
of Records (Grand Jury Subpoena Addressed to XYZ
Corp.), 348 F.3d 16, 24 (1st Cir. 2003) (‘‘[C]ourts have
identified a common denominator in waiver by implica-
tion: in each case, the party asserting the privilege
placed protected information in issue for personal bene-
fit through some affirmative act, and the court found
that to allow the privilege to protect against disclosure
of that information would have been unfair to the oppos-
ing party. . . . Were the law otherwise, the client could
selectively disclose fragments helpful to its cause,
entomb other (unhelpful) fragments, and in that way
kidnap the truth-seeking process.’’ (Citations omitted;
internal quotation marks omitted.)).
Thus, the subject matter waiver rule is consistent
with this state’s precedent recognizing that, because
‘‘the [attorney-client] privilege has the effect of with-
holding relevant information from the factfinder, it
applies only where necessary to achieve its purpose.’’
(Internal quotation marks omitted.) Ullmann v. State,
supra, 230 Conn. 713.
In addition, our Supreme Court has rejected the doc-
trine of selective waiver, which allows a client to dis-
close privileged communications to certain individuals
while maintaining the privilege as to others. See Rosado
v. Bridgeport Roman Catholic Diocesan Corp., 292
Conn. 1, 60–61, 970 A.2d 656, cert. denied sub nom.
Bridgeport Roman Catholic Diocesan Corp. v. New
York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed.
2d 348 (2009). In Rosado, the court reasoned that a
client ‘‘cannot be permitted to pick and choose among
[its] opponents, waiving the privilege for some and res-
urrecting the claim of confidentiality to obstruct others,
or to invoke the privilege as to communications whose
confidentiality he has already compromised for his own
benefit.’’ (Internal quotation marks omitted.) Id., quot-
ing Permian Corp. v. United States, 665 F.2d 1214,
1221 (D.C. Cir. 1981). This reasoning also supports the
application of the subject matter waiver rule, which
serves to prevent a party from strategically using the
attorney-client privilege to further the client’s interests
by selective disclosure of otherwise privileged informa-
tion. See, e.g., Center Partners, Ltd. v. Growth Head
GP, LLC, supra, 981 N.E.2d 357 (‘‘[t]he purpose behind
the doctrine of subject matter waiver is to prevent par-
tial or selective disclosure of favorable material while
sequestering the unfavorable’’).
Thus, because the subject matter waiver rule is con-
sistent with this state’s precedent and is based on the
same fairness principle supporting the implied waiver
rule, we adopt it as the law in this state. We find that
rule 502 (a) of the Federal Rules of Evidence provides
the proper analytical framework for analyzing whether
a subject matter waiver has occurred in a particular
case.6 Accordingly, we hold that the voluntary disclo-
sure of a privileged attorney-client communication con-
stitutes a waiver of the privilege as to all other communi-
cations concerning the same subject matter when the
trial court determines that the waiver was intentional
and that fairness dictates that the disclosed and undis-
closed communications be considered together. Because
the waiver must be intentional, ‘‘an inadvertent disclo-
sure of protected information can never result in a
subject matter waiver.’’ Fed. R. Evid. 502, advisory com-
mittee notes.
Finally, if the trial court finds that the subject matter
waiver rule applies, it must determine the scope of
the waiver, which necessarily involves a fact intensive
inquiry into the nature of the disclosed communica-
tions, as well as those communications withheld as
privileged. See Fort James Corp. v. Solo Cup Co., 412
F.3d 1340, 1349–50 (Fed. Cir. 2005) (‘‘[t]here is no bright
line test for determining what constitutes the subject
matter of a waiver, rather courts weigh the circum-
stances of the disclosure, the nature of the legal advice
sought and the prejudice to the parties of permitting
or prohibiting further disclosures’’), cert. denied, 547
U.S. 1069, 126 S. Ct. 1768, 164 L. Ed. 2d 515 (2006).
Consequently, where a party asserts that the subject
matter waiver rule applies on the basis of disclosed
communications, a court must review the relevant dis-
closed and undisclosed communications to determine
whether a subject matter waiver has occurred and, upon
finding waiver, to define the scope of the waiver. In
this regard, the central question for the court is whether
the disclosed and undisclosed communications ‘‘ought
in fairness to be considered together.’’ Fed. R. Evid.
502 (a) (3). The court must exercise its discretion in
defining the category of information for which the privi-
lege has been waived, mindful of the fairness principle
supporting the subject matter waiver rule—that it
would be unfair to allow the privilege to be used as
both a sword and a shield.
II
Having determined that the subject matter waiver
rule applies in Connecticut, we now consider the
insureds’ claim that the court improperly found that
they waived the attorney-client privilege in the present
case. The insureds argue that (1) the subject matter
waiver rule does not apply when privileged communica-
tions were disclosed in compliance with a court order,
(2) Liberty had a duty to preserve the privilege and,
therefore, could not have waived the insureds’ privilege
by producing the communications, and (3) the court
abused its discretion in finding that the privilege was
waived without holding an evidentiary hearing and
reviewing the relevant communications. Because we
conclude that the insureds’ third argument is disposi-
tive, we address it first.
A
The insureds argue that the court abused its discre-
tion because it failed to conduct an evidentiary hearing
or in camera review of the claimed privileged communi-
cations before finding that the insureds had waived the
privilege as to those documents. The insureds contend
that the court misunderstood the nature of the disclo-
sures and failed to review the relevant documents after
the insureds alerted the court to the apparent misunder-
standing in their motion for reconsideration. Liberty
responds that the court, in its order denying reconsider-
ation, expressly stated that it understood the facts. Lib-
erty also claims that, to the extent there was any confu-
sion, the facts in the record establish that the insureds
waived the privilege by selectively disclosing communi-
cations regarding the merits of the Ghios’ claims in the
prior action. We agree with the insureds.
As a preliminary matter, we address the applicable
standard of review. The insureds argue that the abuse of
discretion standard applies, whereas Liberty contends
that, because the insureds essentially challenge the
court’s factual finding that they waived the privilege,
the clearly erroneous standard applies. Although the
insureds, in arguing that an evidentiary hearing or in
camera review was required, assert that the court ‘‘mis-
understood the actual facts and circumstances sur-
rounding the disclosures,’’ they expressly state that the
‘‘court’s decision cannot stand without at least an evi-
dentiary hearing or an in camera review of the privileged
communications.’’ Thus, the insureds are challenging
the court’s refusal to conduct an evidentiary hearing or
in camera review of the privileged communications, not
the court’s factual findings.
When an appellant claims that the court erred in
failing to conduct an evidentiary hearing, this court
‘‘consistently [has] held that, unless otherwise required
by statute, a rule of practice or a rule of evidence,
whether to conduct an evidentiary hearing generally is
a matter that rests within the sound discretion of the
trial court.’’ (Internal quotation marks omitted.) DeRose
v. Jason Robert’s, Inc., 191 Conn. App. 781, 797, 216
A.3d 699, cert. denied, 333 Conn. 934, 218 A.3d 593
(2019). Therefore, we agree with the insureds that the
abuse of discretion standard applies to this claim.
Under the abuse of discretion standard, ‘‘[w]e must
make every reasonable presumption in favor of the
trial court’s action. . . . The trial court’s exercise of
its discretion will be reversed only [when] the abuse
of discretion is manifest or [when] injustice appears to
have been done.’’ (Internal quotation marks omitted.)
State v. Erickson, 297 Conn. 164, 176, 997 A.2d 480
(2010).
In the present case, the court considered the subject
matter waiver issue during a portion of a short hearing
regarding multiple issues. The entire discussion of the
waiver issue is contained in eighteen pages of the fifty-
four page transcript of the hearing, and the court never
reviewed the communications at issue. Instead, the
court noted that it had a limited amount of time to hear
the parties on the issue and told Schiller to ‘‘just give
me your very best one that would say Berman provided
a document that shows his advice . . . .’’ In a some-
what confusing exchange, Schiller read two communi-
cations from Berman to Liberty; the first communica-
tion was not disclosed to the Ghios, but the second
one was disclosed.7 After Schiller read the undisclosed
communication, but before he read the disclosed com-
munication, the court interjected: ‘‘All right. I—that’s
enough.’’ Schiller then read the disclosed communica-
tion, and the court stated, ‘‘I heard it.’’
We conclude that the court abused its discretion by
failing to review the actual documents on which the
claim of waiver was based. Instead, the court relied on
Schiller’s reading of excerpts from two documents, one
of which should not have been read because the
insureds had instructed Liberty to redact the excerpt
and not to produce it to the Ghios. It is unclear from
the record how much weight the court placed on the
excerpt that should not have been read versus the
excerpt that had been produced. In addition, Liberty
claimed that it had a notebook full of dozens of docu-
ments evidencing the privilege waiver. The insureds
disputed Liberty’s characterization of those documents.
Despite this factual dispute, the court did not review any
of the documents. As previously noted in this opinion,
determining whether there was a waiver of the attorney-
client privilege and defining the scope of any such
waiver is a fact intensive inquiry. Given the parties’
respective and conflicting positions regarding the import
of the documents at issue, the court was required to
review the relevant communications before issuing its
oral ruling finding that the insureds had waived the
privilege as to all communications regarding Berman’s
analysis of the merits of the Ghios’ claims.
In short, given the significance of the privilege and
the factual nature of the inquiry, the court’s cursory
consideration of the issue without reviewing the rele-
vant documents was inadequate. Furthermore, if the
court, following a review of the documents, had deter-
mined that there had been a subject matter waiver, the
court would then have to conduct an in camera review
of the claimed privileged documents and ‘‘weigh the
circumstances of the disclosure, the nature of the legal
advice sought and the prejudice to the parties of permit-
ting or prohibiting further disclosures’’ to determine
which documents were covered by the waiver and
should be produced. Fort James Corp. v. Solo Cup Co.,
supra, 412 F.3d 1349–50. The court conducted no such
review. Accordingly, we remand the case for an eviden-
tiary hearing.
B
Although our resolution of the insureds’ third claim
is dispositive of this writ of error, we address their
remaining claims because they are likely to arise on
remand. The insureds claim that the subject matter
waiver may not be applied in the present case because
(1) the communications were produced pursuant to a
court order, (2) Liberty had a duty to preserve the privi-
lege and, therefore, could not have waived the insureds’
privilege by producing the communications, and (3) the
insureds are not parties to the underlying action.8 These
claims implicate the scope and contours of the subject
matter waiver rule and, therefore, our review is plenary.
See Hutchinson v. Farm Family Casualty Ins. Co.,
supra, 273 Conn. 38 (whether court properly delineated
scope and contours of exception to attorney-client privi-
lege is question of law).
1
First, relying on several federal cases, the insureds
argue that, ‘‘when a person discloses privileged commu-
nications only after being compelled to do so, it cannot
be said that the privilege holder sought to gain an unfair
advantage through selective disclosure.’’ They argue
that a ‘‘good faith effort to comply with a court order
. . . should not serve as the basis for a subject matter
waiver.’’ We are not persuaded.
As previously noted in part I of this opinion, only
the voluntary disclosure of a privileged attorney-client
communication constitutes a waiver of the privilege
as to all other communications concerning the same
subject matter. When a client is ordered by a court to
disclose a privileged communication, the disclosure of
that communication would not be a voluntary waiver
of the privilege. In the present case, however, Liberty
argues that the insureds disclosed privileged communi-
cations that were not subject to the court’s discovery
order and that they did so in order to assist the Ghios
in their action against Liberty. In fact, Liberty did not
raise the waiver issue until the Ghios filed a motion for
summary judgment that included three communica-
tions between Berman and Liberty, which the insureds
acknowledge were provided to the Ghios before the
court issued its discovery order. Thus, those communi-
cations were not produced pursuant to the court’s
order. Furthermore, because of the cursory manner in
which the court resolved the waiver issue, it is unclear
from the record whether Liberty is relying on other
voluntary disclosures made by the insureds that were
made beyond the scope of the court’s August 6, 2019
discovery order. Consequently, on remand the court
must determine which privileged communications were
voluntarily disclosed by the insureds and whether fair-
ness requires that the voluntarily disclosed communica-
tions and any undisclosed communications regarding
the same subject matters be considered together.
2
Second, the insureds contend that, as a matter of
law, because Liberty had a duty to preserve the privi-
lege, Liberty could not have waived the insureds’ privi-
lege by producing the communications. They argue that,
pursuant to the common interest doctrine,9 Liberty had
a duty to preserve the privilege by not disclosing privi-
leged communications, and its failure to so preserve the
privilege could not constitute a subject matter waiver
of the insureds’ privilege. We are not persuaded.
First, this argument ignores the fact that the insureds
directly produced privileged communications to the
Ghios, which the Ghios then used in support of their
motion for summary judgment. Therefore, the insureds
waived the attorney-client privilege independent of any
action of Liberty. Second, to the extent that there was
an additional waiver when Liberty produced documents
in response to the court’s order, there is no dispute
that the insureds, after reviewing and redacting the
documents to their satisfaction, instructed Liberty to
disclose the communications at issue. Liberty satisfied
its duty to preserve the privilege by relinquishing con-
trol of the production of the communications to the
insureds, thereby allowing the insureds to decide which
communications to disclose pursuant to the court’s dis-
covery order. Accordingly, although Liberty produced
the relevant communications, it is undisputed that Lib-
erty produced only those communications that the
insureds instructed it to produce. Accordingly, this claim
fails.
3
Finally, the insureds assert that the subject matter
waiver rule should not apply here, because they are not
parties to the underlying action and, therefore, ‘‘there
is no unfair advantage for them to gain . . . .’’ We dis-
agree.
In the present case, although the insureds are not
parties to the litigation, there is no dispute that they
assigned their rights under the policy to the Ghios in
order to settle the prior action brought against them.
This alone would suggest that the insureds have an
interest in the underlying action notwithstanding their
lack of party status. Moreover, this assertion is under-
mined by Beard’s representations before the court that
the insureds had ‘‘a real tangible concern about whether
or not this throws the door open to all of the underlying
analyses of the legal strengths and weaknesses of the
underlying case, and what [the Ghios’ attorney] said at
the beginning of today’s hearing only underscores it,
which is he’s not ruling out the fact that if things don’t
go his way in this case, he’s going to come back and try
to drag [the insureds] back into court on the underlying
case. And if all of this comes out, suddenly now he’s
got the entire roadmap for everything that we were
going to do in the underlying case.’’
Furthermore, the subject matter waiver rule properly
may be applied to a nonparty if the court determines
that ‘‘the privilege-holder has attempted to use the privi-
lege as both a sword and a shield or where the attacking
party has been prejudiced at trial.’’ (Emphasis added;
internal quotation marks omitted.) In re von Bulow,
supra, 828 F.2d 102–103. In other words, because the
focus of the rule is on the abuse of the privilege by the
privilege holder, it may be applied where the privilege
holder, although not a party to the litigation, has
attempted to use the privilege as a sword and a shield.
The writ of error is granted and the case is remanded
with direction to hold an evidentiary hearing to deter-
mine whether to apply the subject matter waiver rule
and, if the rule applies, to identify specifically which
documents must be produced.
In this opinion the other judges concurred.
1
After the parties filed their briefs, this court, sua sponte, ordered them
to file supplemental briefs addressing whether the court’s discovery order
is a final judgment. See Practice Book 72-1 (a) (‘‘[w]rits of error for errors
in matters of law only may be brought from a final judgment of the Superior
Court to the Appellate Court’’). We conclude, and the parties agree, that
the court’s discovery order is immediately appealable under the second
prong of the finality test set forth in State v. Curcio, 191 Conn. 27, 31, 463
A.2d 566 (1983).
‘‘[A]n order issued upon a motion for discovery ordinarily is not appealable
because it does not constitute a final judgment, at least in civil actions. . . .
Typically, a nonparty must be found in contempt of a discovery order before
it may appeal that ruling. . . .
‘‘Nevertheless, appellate courts may deem interlocutory orders or rulings,
including discovery rulings, to have the attributes of a final judgment if they
fit within either of the two prongs of the test set forth in State v. Curcio,
[supra, 191 Conn. 31]. . . . Under Curcio . . . interlocutory orders are
immediately appealable if the order or ruling (1) terminates a separate and
distinct proceeding or (2) so concludes the rights of the parties that further
proceedings cannot affect them.’’ (Citations omitted; internal quotation
marks omitted.) Redding Life Care, LLC v. Redding, 331 Conn. 711, 730,
207 A.3d 493 (2019); see also Abreu v. Leone, 291 Conn. 332, 346, 968 A.2d
385 (2009) (‘‘an order issued upon a motion for discovery ordinarily is not
appealable because it does not constitute a final judgment, and . . . a wit-
ness’ only access to appellate review is to appeal a finding of contempt’’).
In the present case, Liberty has possession of the privileged documents
and, therefore, is able to provide them to the Ghios or make use of them
itself pursuant to the court’s order. Thus, because the insureds are unable
to withhold the documents and be found in contempt, from which judgment
they could appeal, we conclude that the court’s order of production so
concludes their rights to maintain the privilege that no further proceedings
before the court can affect them. Cf. Redding Life Care, LLC v. Redding,
supra, 331 Conn. 739 (finding that further proceedings could affect plaintiff
in error because he ‘‘may be held in contempt by the trial court for failing
to comply with the discovery order, which then would constitute an appeal-
able final judgment’’). Accordingly, this court has jurisdiction over the writ
of error.
2
The Ghios also named the following additional defendants: Berman and
his law firm, White & Case, LLP; Back9; the insureds; and Attorney R. Stacy
Lane, Liberty’s attorney, and his law firm, Bailey Cavalieri, LLC. The court,
Moukawsher, J., granted the motions to dismiss filed by the additional
defendants, leaving Liberty as the sole remaining defendant.
3
General Statutes § 38a-321 provides in relevant part: ‘‘Upon the recovery
of a final judgment against any person, firm or corporation by any person
. . . for loss or damage on account of bodily injury or death or damage to
property, if the defendant in such action was insured against such loss or
damage at the time when the right of action arose and if such judgment is
not satisfied within thirty days after the date when it was rendered, such
judgment creditor shall be subrogated to all the rights of the defendant and
shall have a right of action against the insurer to the same extent that the
defendant in such action could have enforced his claim against such insurer
had such defendant paid such judgment.’’
4
On appeal, the insureds have abandoned their claim that the disclosures
to the Ghios were made in an extrajudicial context.
5
Several state courts also apply the subject matter waiver rule. See, e.g.,
Citadel Holding Corp. v. Roven, 603 A.2d 818, 825 (Del. 1992) (‘‘It is clear that
the disclosure of even a part of the contents of a privileged communication
surrenders the privilege as to those communications. . . . The so-called
rule of partial disclosure limits the waiver to the subject matter of the
disclosed communication.’’ (Citations omitted; internal quotation marks
omitted.)); In re Grand Jury January 246, 272 Ill. App. 3d 991, 997, 651
N.E.2d 696 (‘‘where a client reveals portions of her conversation with her
attorney, those revelations amount to a waiver of the attorney-client privilege
as to the remainder of the conversation or communication about the same
subject matter’’), appeal denied, 163 Ill. 2d 558, 657 N.E.2d 622 (1995); Miller
v. Continental Ins. Co., 392 N.W.2d 500, 504–505 (Iowa 1986) (‘‘voluntary
disclosure of the content of a privileged communication constitutes waiver
as to all other communications on the same subject’’); Smith v. Kavanaugh,
Pierson & Talley, 513 So. 2d 1138, 1144 (La. 1987) (‘‘[t]he introduction into
evidence of documents disclosing privileged communications also waives
the privilege against testimony or production of further documents disclos-
ing communications on the same subject’’); Marshall v. Marshall, 282 S.C.
534, 538, 320 S.E.2d 44 (App. 1984) (‘‘[a]ny voluntary disclosure by a client
to a third party waives the attorney-client privilege not only as to the specific
communication disclosed but also to all communications between the same
attorney and the same client on the same subject’’).
6
Although rule 502 (a) of the Federal Rules of Evidence also applies to
waiver of the work product protection, our holding is limited to the waiver
of the attorney-client privilege, as that is the only issue presented in this
writ of error.
7
This exchange was confusing because, before reading from the undis-
closed communication, Schiller stated that ‘‘this is post . . . Beard’s
redacting . . . .’’ Ordinarily, ‘‘post redacting’’ would mean that the excerpt
being read was disclosed after other portions of the document had been
redacted.
8
Although Liberty argues that these claims are unpreserved and, therefore,
we should decline to review them, we address them because they likely
will arise on remand. See, e.g., State v. Manuel T., 337 Conn. 429, 437 n.7,
254 A.3d 278 (2020) (‘‘[i]n light of our conclusion . . . that the defendant
is entitled to a new trial due to the improper exclusion of the text messages,
we would address the proper standard for admission of this evidence even
if the issue was unpreserved, as it would be likely to arise on remand’’).
9
‘‘[T]he common interest doctrine extend[s] the attorney-client privilege
to any privileged communication shared with another represented party’s
counsel in a confidential manner for the purpose of furthering a common
legal interest.’’ (Internal quotation marks omitted.) Hanover Ins. Co. v.
Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 612, 870 N.E.2d 1105
(Mass. 2007).