so the first case are called the docket today tuesday september eighteenth two thousand and twelve is agenda number thirteen and solve cases one one three one zero seven one one three one two eight setter partners  mr chief justice justice of the supreme court my fellow lawyer law school colleague a classmate and  until this case the course of the state had developed a very sound principle relating to subject matter  waiver that principle had batten bet when a client intentionally or voluntarily put school oses or puts into issue privileged information in the context of the litigation the privilege is no room he waived as to meet the school's information but not as to undisclosed information the courts have emphasized but there is no blanket waiver by partial disclosure this case has arguably one of the elements i have just given concerning that general principle voluntary intentional waiver of the attorney client privilege it lacks the other two elements in the context of litigation and narrow way for of attorney client privilege information the premise of that principle  client privilege he can't here she cannot rely on the attorney client privilege once he or she has used it as a sore cannot rely on the attorney client privilege as a shield so in the common in cases where the the the  occurs cases such as a legal malpractise where the client may say it was my my lawyer told me it was ok to do vs that's the bet constitutes a waiver of the attorney client privilege relating to what in vice that lawyer gave in connection with it's ok to do this in the context of a criminal case when a defendant claims that his client was attorney was ineffective in his representation because he didn't act on information that i gave him or he told me it was ok to do a certain act that opens the door for inquiry concerning what else the the lawyer told the client and that topic so that  the used by the client in explaining the cause of action the defense the theory is not used as a shield the these conversations these business negotiations there was no litigation and none anticipated as a matter of fact the appellate court opinion specifically says that in denying the work pro threatens the truth seeking function that's the basis for the waiver but the waiver extends no further then the subject matter concerning which testimony has been given by the client what i have just confirmed the court is a direct quote from people versus gerald the someone'll case ninety four team supreme court decision which indeed addresses because that case was reversed for other other reasons and the defendant it was prosecuted by a former lawyer who who represent making it easier for counsel is not a reason for doing so for awaiting the attorney client privilege for a broad expansion of the subject matter waiver within this this litigation insofar as attorney advice is concerned it's a roll of into the cause of action the what the attorneys told the  clients has has no no no connection to the cause of action if the the defendants acted in a wrongful way that on its own will will determine the cause of action not what the attorneys said attorneys as experts are not permitted to give opinions as to the law why in this case is it relevant what what did vice the attorney gave in a business transaction not related to ruby question no sword and sh given to third parties in a business transaction and and that obviously is your position and preserve the attorney client privilege as to that subject matter i mean i could could could you say the same thing to three different third parties or different still say hey we still have a privilege here or is there at some point in time when the actual focus of the conversation be becomes discussions between the attorney is it just a is not triggered in this case i think a strong argument could be made for the fact that the common interest doctrine should have been applied but unfortunately that's not our are factual so you know we also as far as what that third party there's no privilege that attaches to what was actually said that there purdy but it stops there and you can't go into the precisely the subject matter waiver which fits so well within the context of litigation because of the sword and c e o because of the truth seeking process where that you know partial disposer should not be permitted the the other side should be able to fully dev these matters and in this case not only as a subject matter waiver been applied but more broadly than any case i am aware of fifteen hundred documents we're not talking about fifteen hundred pieces of paper we're talking about fifteen hundred documents two hundred seventy nine documents of proust's almost eight hundred documents so numerous decker which had nothing to do with this issue that's a cry of crime fraud exception absolutely nothing to do with it and by the way that case is cited with the same name in the same page number son said to the defense attorney the son killed his father the mother's husband and he the lawyer did nothing  and the son was willing to say that during trial the mother was willing to say that the lawyer did nothing concerning bad information allegation of ineffective assistance of counsel the lawyer didn't testify  allegations made by by the mother by them made by the defund that's what a banner is all about clearly a case in in the context of of litigation things and by the way you'll note that in the in the circuit courts original order there is no mention whatsoever of the camera review none in the supplemental order on denial o e documents related to acquisition structure this court ordered the production of all of the documents the court understood the difference between several and  all when you consider that statement in context i found it interesting in reading the appellate court decision that the appellate court said that the circuit court reviewed some of the documents i thought but subject matter waiver even narrow subject matter waiver and certainly the kind of broad subject matter waiver that was imposed here should not be imposed and you know there's the seminal case in ray von bulow the second circuit case were fine buell you you may recall was tried and acquitted on the second trial of murdering his wife represented by the ocean rights from harvard law school who wrote a book concerning the trial the appeal and so forth and cited numerous attorney client privilege conversations the really the second circuit held but those were extra just judicial statements not in the context of litigation and there was no subject matter waiver there was no ability on the part of the the errors of the murdered rife to  seek additional attorney client privilege information the first circuit decision and by the way these are these are the two leading cases in the country and let's topic the first  new question mr de vito just to clarify in my mind once you responded to justice freeman's inquiry about what happens your position a is these are not related to the education they were during the term during the course of business dealings is after a yes and it's your position that any disclosure made during the course of those days of the lease can be made without getting into the entire subject matter does it matter what for what purpose or major it's to created advantage in the business dealings as do we get into that type of thing or that there's no absolute book it makes no difference what the purpose in extrajudicial  from that which occurs within litigation which i trust and hope you will not determine it would be the first case and in the country from a supreme court or an appellate court for that matter so holding in that case then if there is a rematch and a proper in camera review should occur but you know it's interesting to note that this in camera review the court relied  the supreme court decision i've referred to before the crime fraud exception that case has language too about in camera review and the need for some evidence really basis for  conducting and in camera view so the proper method of perceiving in a case such as this is whether or not indeed the the extra extra judicial statements do trigger a subject matter waiver and if the answer to that and as your honor i think properly phrased the question if your answer t hat is yes then we may be into a heated and in camera interview situation but the answer is no there's no need for art there's no question in this case that these documents were were protected by attorney client privilege it's a given in the case every one of the documents how in heaven's name i see my time's up they have just finished the sentence how in heaven's name did the  plaintiffs choose fifteen hundred documents from from westfield two hundred seventy nine documents from from ramos and school or perfectly one hundred percent accuracy but the judge who read some of the matters and in camera was was absolutely the plaintiffs were absolutely right in selecting these documents because they all fit the broad subject matter waiver but the judge imposed that's unthinkable and you know from reading the british the clearly some things  we took evidence together one of us wasn't listening that particularly when you when you put it in the framework of illinois law and this court has said a number of times probably most recently in justice freeman's opinion in waste management is about this is about the truth seeking functions of the court the attorney client privilege in general is an obstacle to the truth so if somebody doesn't want secrecy than then and they waive the attorney client privilege why should you limit that waiver to waivers that i happen in judicial proceedings why wouldn't it apply just as well in the end he and some other cont what difference does it make if if a client plays an attorney client privilege by giving up the secrecy in a court proceeding in the business to go she ation or are at a cocktail party the adversary proceeding also and why why would it be acceptable to the legal profession and to this court to adopt a policy that says it's ok to use half truths and visit the koshi ations just so long as you don't bring it to the position first of all as it doesn't matter if the privilege has gone that that information is available for discovery because the client no longer desired that subject matter to be secret but in this case they are using it i think that's for your question they are using it in the litigation witnesses have testified when they were asked about when they're asked about this transaction and about this synthetic partnership which is th the heart of this controversy they say are lawyers told that was ok in other words how could you possibly get around your contractual obligations and you're fired you sherry duties that are in this other document by by the subsequent deal that you negotiated the three of you to negotiate and leaving us out of it and the answer is i could not return he said that's all right and and that that information is going to come before a jury and and we know from the documents that we've received well you know that one of the law firms that was involved skadden arps new york office had problems the documents say they had problems with this process why and and the and the particularly i was particularly offended by the argument by that by that i a species discussion doll vog of the ethics problems which have absolutely nothing to do with this case this was all this all this disclosure was with clients consent but let me i'm getting tough getting away from your question what the sky is falling is this what they're saying is if you allow if you allow wave privilege whether you are in a court room or in iraq in a deposition at a cocktail party or business negotiations if if there if there is something that you want keep to keep secret keep secret the fact of the matter is what they say what they suggest is it's exactly the opposite and i'll try to give you an example they say you have to go through this fairness balancing and make a determination whether that information whether subject matter applies after you make a waiver on a business a go she should but the problem with that is it may or may not be waived you won't know until a court later sees the entire circumstances cases from delaware heard a real statement says that it's the majority rule lawyers understand that is part of your argument and this is going to be a question for mr de vito when he gets back up here primarily but is part of your urge demand that an attorney and the business negotiations they can preserve a sword for the litigation staged by saying something that they know could come out perhaps through a third purdie and then keeping the the rest of the conversation  in this particular case if you have a business negotiation right and something is said to a third per as to what a lawyer it's the you know for a third party which would be privileged because it was said but the subject matter under mr to be those argument would right my question is could you be using it as a sword and a shield knowing that whatever this business to go she isn't that's going on may result in litigation and therefore get out what you want out out what you don't want it that is or i think that's a genuine risk and in fact hell in some respects that happened here but but that that is a risk of their of that rule and that goes to justice thomas question does it have to happen here do we have to have some type of do we have to do some fact finding to find out if that's exactly what was going on that there was litigation and discussed or in the offing and tactical advantage that tempted to get in the litigation yes so it's not strictly sas strictly the business aspect yes that's correct your honor and look at this entity that we describe urban was a partnership and this is a partnership urban owned some of the most important real estate in america three the three defendants decided they wanted that property they developed this scheme and that's what it's charge in a complaint to develop the scheme to really appropriate that property the only problem with the they have the buyers the three defendants decided they could still acquire this property if they could get around these contract provisions and these five do sherry duties so they developed a synthetic  product we have to get the documents to understand it the documents say schedule has some problems with this we want to see what those problems were and if that isn't the same subject matter sk scared and has some problems all right that subject matter has opened up what about where the problems that scattered and found there was and that structure and the trial quite that the step two subjects a synthetic partnership was one  longer on the bench i don't believe but anyway on the the appellate court referred to the fact that there's only a handful that they challenged as being outside of the subject matter and and  the log only thirty seven percent there is this reference that all the dot dot documents related to this transaction that were on their privilege to walk the plaintiffs identified thirty seven percent  and the second the second circuit says no no no you can't use the bad evidence they didn't they only waived the privilege as to the good good evidence that's preposterous i mean that's that i can't believe that so called modern trend is and and some of these federal cases and what that court said is what you do with actual judicial waivers has you apply a fairness test and the fairness test is that they out you one ply they referred to federal rule five o two and that route which which it says only applies to a traditional way of hers but they said you apply the same rationale and that is materials ought in fairness be considered together that's here to me that's clearly these documents should be considered together over here if you have heard if you adopted the wheeling and as the later case that i referred to but if you would doubt that we land there i wanted to adopt some other law you would consider the following the disclosure here was intentional with the knowledge of the client the disclos know years told us it was ok they knew from day one and this gets back to a question they knew from the from that conference room when they were conference rooms because there were many meetings they knew when they were exchanging those documents and putting the steel they knew that they were going to be in a court with us someday they had to know because the stakes were so big so under those circumstances you can't separate litigation from the goshi action but i don't think you should i think deserve the attack it received and they p l a hair better law is in the appellate court it's consistent with the teachings of this court on the subject but even if you disagree with the interpretation under all of the facts here you should still a f because they are using it offensively in the litigation thank you very much for your attention let's listen mr for you you said something to the effect that they would testify or they would say they relied on lawyers advice and doing something or other does that open up such as such a small part of the record but but when i asked the question two different would this is in different ways when i asked the question what made you think you could  this take these properties of properties away and not mad to the future developments through the existing partnership what made you think you could do that without breaching your friday sherry duties or are breaching the contract  rights of the original partnership the answer was i lawyers this whole thing was a preacher a lawyer i mean these business people didn't put this synthetic partnership vito it's important for us to fall to respond to those allegation that that the witness relied upon the advice of counsel  when your honour's have an opportunity to review the record on this you will know that throughout that deposition of the c e o furled westfield which is what mr ford has been referring to there was a constant in vocation of the attorney client privilege over and over again and a recognition by plaintiff's consul that the attorney client privilege was being invoked and a basis for the appellate court's decision or the circuit court's opinion it's sort of a throwaway argument that they that they make which cannot stand up on close scrutiny there was no indication  advice so that these issues are out of this case this case is about subject matter waiver on extra digit judicial  statements in the context of business negotiation plaintiffs talk about a way to get around this problem as a matter of fact they  argument you know what's good for the goose is good for the gander judge we said at the circuit court level if you're going to rule that we have to turn over documents to back privileged documents documents because of what was said during negotiations then we'll know about the plaintiff's disclosures during their discussions with revamp call and others we should be entitled to well the response is well it could be phrased differently instead of talking about attorney advice you can use words like legal position has implications legal view discussion in courtrooms regarding obtaining discovery admissibility of evidence concerning the semantic terms they have relied and in the affidavits which they have negotiations knowing that those negotiations aren't going anywhere and setting something up for the shield the word the litigation so you're right to the first test of course that would have to be met in in such a case would be the issue of relevancy and we're talking about the potential of potential hearsay here as well so that the fact that the lawyer said it during these discussions i really of no moment but it shouldn't be admitted that there were searches to get all this i'm disclose information documents which will not be there are you saying it can be handled by just not of even undisclosed an unrelated matters without a without a dollop that occurred in this case just should not be should that be accepted by this court implied waiver extending to an entire subject matter involves a judicial disclosure that is a disclosure made in the course of a judicial proceeding  right z i'm sorry i just quoted x y z bond bull there exists no reason and logic or equity to broaden the waiver beyond those matters actually imposed subject matter waiver the reason is that the school zhorzh made in public rather than in court even if selective create no risk of a legal prejudice until put issue in the litigation by the privilege holder what your honour's have to be concerned about is legal prejudice not the stuff that's being said out there  r counsel has told you that the bound bill and dershowitz were on programs i think before the retrial i don't think that's true it was done after the second trial after the the acquittal and the fact that they're using this stuff to promote a book triggers the ability to get the attorney client privilege the court should not countenance that that  there's absolutely no connection between the two it has nothing to do with our truth searching interests that in some way in public even out should i respond to the consul tells you that the only chose thirty seven percent of the documents where they had a grand slam home are on those thirty seven percent and documents that we know from the circuit court's own statements that he reviewed several can you see him sitting at the computer reading all of these hundred percent are turnbow for talk about broad subject matter disclosure this case is the epitome of that minimally you know we we've argued and we do mean it but there should be no subject matter waiver but minimally this court should abide by what all the courts in the i have said regarding subject matter waiver in the context of litigation but the the waiver is very narrow extraordinarily no the cases that we deal with involve the turning over of a document or to not be the the many documents that have been turned over i see my time has expired thank you very much thank you mr de vito mr ford we thank you for your arguments today based numbers one one three one zero seven