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In re UMW Emple. Benefit Plans Litig.

United States District Court for the District of Columbia

December 9, 1994, Decided ; December 9, 1994, FILED

Master File No. MDL 886, Misc. Action No. 91-386



Pending before the Court are defendants' and plaintiffs' motions to reconsider Magistrate Judge Kay's Order of April 19, 1994. 1 Defendants argue that Magistrate Judge Kay wrongly decided that (1) "the waiver is to be narrowly construed and limited to those other documents addressing the same specific subject matter as the documents already produced" and (2) plaintiffs have not yet put their knowledge at issue. Plaintiffs argue in their motion to reconsider that Magistrate Judge Kay wrongly decided (1) to extend the subject-matter waiver generated by disclosure of certain privileged documents to attorney work product; (2) to require the Trusts to produce legal memoranda attached to the trustees' meeting minutes; and (3) to hold that the common interest rule does not apply to communications between the Trusts, the BCOA, and the UMWA. Under 28 U.S.C. § 636(b)(1)(A),  [**2]  this Court may grant a motion to reconsider a magistrate judge's rulings on pretrial matters when the rulings are clearly erroneous or contrary to law. Having carefully considered all of the parties' arguments, the Court shall deny defendants' motion to reconsider and shall grant plaintiffs' motion to reconsider.

I. Defendants' Motion to Reconsider 

A. Scope of Subject Matter Waiver

Defendants first argue 41 their motion to reconsider that Magistrate Judge Kay erred in holding that plaintiffs' waiver of the attorney-client and work product privileges "is to be narrowly construed and limited to those other documents addressing the same specific subject matter as the documents already produced."  [**3]  Mem. Or. at 1-2. Defendants  [*309]  contend this standard deviates from the standard that governs subject matter waivers in this Circuit.

In In re Sealed Case, 278 U.S. App. D.C. 188, 877 F.2d 976, 981 (D.C. Cir. 1989), the United States Court of Appeals for the District of Columbia Circuit "clearly expanded the application of the subject-matter rule to even inadvertent disclosure of privileged material," Mergentime Corp. v. Washington Metro, Area Transp. Auth., 761 F. Supp. 1, 2 n.2 (D.D.C. 1991) (I. Revercomb), and held that a subject matter waiver extends to "all other communications relating to the same subject matter." In re Sealed Case, 877 F.2d at 976, 981 (quoting In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 809 (D.C. Cir. 1982)). However, the Court of Appeals also reaffirmed the principle that ] a trial court retains broad discretion in deciding the appropriate scope of a waiver. Id. at 981 (citing Pierce v. Underwood, 487 U.S. 552, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988), [**4]  for the proposition that "decisions that resist application of general rules and depend on factual situations are appropriately reviewed under abuse of discretion standard").

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159 F.R.D. 307 *; 1994 U.S. Dist. LEXIS 19151 **

In re United Mine Workers of America Employee Benefit Plans Litigation

Prior History:  [**1]  Original Opinion of April 18, 1994, Reported at: 1994 U.S. Dist. LEXIS 19339.


documents, common interest, disclosure, communications, subject matter, attorney-client, subject-matter, work product, attorney work product privilege, reconsideration motion, waives, attorney's work product, work product privilege, privileged document, confidential, plaintiffs', parties, evergreen, defendants', inadvertent, privileges, anticipate, disclose, purposes, third party, diverged, narrowly

Civil Procedure, Privileged Communications, Work Product Doctrine, General Overview, Discovery, Waiver of Protections, Evidence, Privileges, Attorney-Client Privilege, Waiver, Legal Ethics, Client Relations, Duties to Client, Duty of Confidentiality, Methods of Discovery