At the same time, Allstate argues that Avila's lawyer referred her to Dr. Samaniego to strengthen her damages claim. I see no basis for arguing that the attorney's referral was unrelated to his legal services in the case. If that were true, then Avila should also have waived any privilege from disclosing what her attorney said in the process of the referral. Disclosure of the mere fact of referral does not waive the privilege for all related information. Allstate argues that evidence that Avila saw Dr. Samaniego because of her attorney's referral and not her own physical condition tends to show that her medical expenses were not reasonable and necessary but intended merely to increase her damage claims.
Offensive use is an exception to the attorney-client privilege.
Allstate argues that this requirement is satisfied by showing that disclosure would affect the outcome in some way, however slight, and that the offensive use exception does not require a showing that disclosure would defeat Avila's claim altogether. I agree with the latter point, but the exception requires a showing of more than some effect. A contradiction in position without more is insufficient. The confidential communication must go to the very heart of the affirmative relief sought. A showing that disclosure of a confidential communication would significantly affect the amount of damages awarded to a party could satisfy this requirement, but Allstate has made no such showing.