29.8 HEARN DOCTRINE: ACTION OR INACTION
29.801 Introduction. In some situations, a client's assertion that it either took or failed to take an action triggers an "at issue" waiver. In some situations, the client's action or inaction involves a lawyer, which raises an issue closely related to the implied waiver doctrine discussed in Chapter 28 of this book.
29.802 Assertions That Trigger an "At Issue" Waiver. This type of "at issue" waiver parallels the somewhat less extreme "anticipatory waiver" doctrine discussed above. A litigant pointing to its actions in an earlier pleading will have to eventually produce evidence about those actions. Although the same might be true of the "knowledge" or "ignorance" types of "at issue" doctrine waivers discussed immediately above, it seems more obvious that a litigant will have to explicitly present evidence of its actions in order to prove the claim. In addition, it might be
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easier to abandon this type of claim or defense than it would be to drop a claim of knowledge or ignorance, which would seem to go more to the heart of a litigant's position.
In 2012, the Central District of Illinois dealt with Dish Network's reliance on the "safe harbor" provision of the "DO NOT CALL LIST," which allows companies to avoid liability by monitoring the company's calls and enforcing compliance. 88 The court found that Dish Network's "Safe Harbor" affirmative defense triggered an "at issue" waiver, because the company's lawyers had been involved in the action that supported the affirmative defense.
Dish's attorneys actively participated in performing monitoring and compliance functions. Dish has asserted that those monitoring and compliance functions provide part of the basis for its Safe Harbor defense. As such, the attorneys' participation in monitoring and compliance are part of the defense and cannot be shielded by claims of privilege. 89
Courts have found an "at issue" waiver when a litigant asserted that the litigant had:
| • | Lost consortium because of her husband's death, based on her testimony that she and her husband decided not to follow through with a divorce; 90 | |
| • | Changed its methodology in good faith to comply with the law; 91 | |
| • | Settled an underlying case on unfavorable grounds because of its insurance carrier's bad faith; 92 | |
| • | Found that its law firm's "'investigation has revealed no instance of deliberate deletion to deny [the plaintiff] access to any information responsive to the allegations in the Complaint'"; 93 |
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| • | Entered into a reasonable settlement, for which it seeks contributions from another person; 94 | |
| • | Found that its lawyer had acted without authority; 95 | |
| • | Signed a document under duress; 96 | |
| • | Been damaged because its insurance carrier hired an inefficient law firm to represent it; 97 | |
| • | Complied with FMLA provisions; 98 | |
| • | Not made an insurance coverage decision until it received written advice; 99 | |
| • | Given its insurance carrier timely notification of a claim; 100 |
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| • | Arranged a novation of employment agreements; 101 | |
| • | Complied with a condition precedent; 102 | |
| • | Arbitrated overseas, to avoid the arbitration being given preclusive effects; 103 | |
| • | Not been represented by a law firm at a certain time. 104 |
29.803 Assertions That Do Not Trigger an "At Issue" Waiver. On the other hand, courts have rejected the application of the "at issue" doctrine to assertions by a litigant that the litigant had:
| • | Engaged in due diligence; 105 | |
| • | Complied with fair lending laws and regulatory requirements; 106 | |
| • | Asserted a legitimate defense; 107 | |
| • | Met with a third party at a lawyer's request; 108 | |
| • | Not exercised control over credit card companies; 109 |
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| • | Not committed a crime; 110 | |
| • | Engaged in inequitable conduct. 111 |
29.804 Relationship to the Client's Denial of Communications with a Lawyer. In some unusual circumstances, a client might deny having a lawyer, or deny meeting with a lawyer. This normally would not trigger any waiver, because such background facts about a relationship with a lawyer or a communication with a lawyer do not themselves deserve privilege protection. 112 Therefore, their disclosure presumably would not trigger an express waiver.
In contrast, the client might seek...
