In re Von Bulow
Citation
828 F.2d 94 (2d Cir. 1987). United States Court of Appeals for the Second Circuit.
Facts
Claus von Bulow was twice tried for the attempted murder of his wife. After his acquittal, his attorney, Alan Dershowitz, published a book about the case — “Reversal of Fortune” — that disclosed extensive details about von Bulow’s defense, including privileged attorney-client communications. The prosecution subpoenaed the attorney’s notes and files, arguing the book’s disclosures had waived the privilege.
Issue
When a party selectively discloses privileged attorney-client communications to the public, does that waiver extend to all privileged materials on the same subject, or only to the specific communications disclosed?
Holding
The court held that voluntary disclosure of privileged materials waives the privilege only as to the specific communications actually disclosed, not as to all privileged communications on the same subject matter — provided the selective disclosure was not used to gain an unfair litigation advantage.
Rule / Doctrine
There are two waiver doctrines: (1) express waiver — voluntary disclosure of specific privileged communications to the public waives privilege for those communications; (2) implied subject-matter waiver — when a party discloses privileged communications in litigation to gain a tactical advantage, waiver extends to all undisclosed communications on the same subject (to prevent selective use of privilege as a sword and shield). The court limited subject-matter waiver to the litigation context, declining to extend it to public disclosures made outside litigation.
Significance
Von Bulow carefully defines the scope of privilege waiver and the subject-matter waiver doctrine. It is frequently assigned alongside Swidler & Berlin v. United States and other privilege cases in professional responsibility courses.