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The "at issue" doctrine represents the most extreme
form of implied waiver, because it can waive the privilege without
the owner's disclosing privileged communications or even
referring to them. The most common example involves a
company's affirmative defense (called the
Faragher-Ellerth defense) that it fully investigated a
Title VII hostile work environment claim, and took reasonable
remedial measures. Although not disclosing privileged
communications or even referring to them, a company asserting such
a defense normally waives the privilege for otherwise protected
investigation materials.
In United States v. Dish Network, L.L.C., No.
09-cv-3073, 2012 U.S. Dist. LEXIS 80844 (C.D. Ill. June 12,
2012), the plaintiff alleged that defendant Dish Network violated
various FTC regulations by improperly soliciting people on the Do
Not Call list. Dish filed an affirmative defense relying on a
"Safe Harbor" provision – which allows
companies to avoid liability if they have (among other things)
monitored and enforced compliance with the Do Not Call list
provisions. The court analogized that defense to the
Faragher-Ellerth defense, and held that "[t]he same
principle applies here with respect to Dish's counsels'
participation in compliance and monitoring functions."
Id. at *10. Because Dish's lawyers
"actively participated in performing monitoring and compliance
functions . . . the attorneys' participation in
monitoring and compliance are part of the defense and cannot be
shielded by claims of privilege." Id. at *12.
As in the Faragher-Ellerth context, companies arranging
lawyer involvement in an effort to carefully comply with the law
can actually hurt themselves. In this case, the court noted
that "[i]f the attorneys did not participate in performing
monitoring, then the privilege would not have been
waived." Id.
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