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348 F.3d 16 · Court of Appeals for the First Circuit · 2003

Facts

XYZ Corp. distributed a medical device that malfunctioned, leading to an internal investigation and consultation with outside counsel. During a telephonic conference with co-venturer Smallco (which was recorded), XYZ's counsel advocated its position. A grand jury subpoenaed documents, and XYZ claimed attorney-client privilege, but the government argued waiver due to the call and subsequent pre-indictment presentations.

Issue

Did XYZ Corp. waive its attorney-client privilege through an extrajudicial disclosure during a conference call with a third party, or through pre-indictment presentations to the government where it explicitly reserved privilege?

Holding

The Court of Appeals reversed the district court's turnover order and vacated the contempt citation. It held that no broad subject matter waiver occurred from the extrajudicial disclosure, and the government's acquiescence preserved privilege during pre-indictment presentations.

Rule

An extrajudicial disclosure of attorney-client communications, not thereafter used by the client to gain adversarial advantage in judicial proceedings, cannot work an implied broad subject matter waiver. Furthermore, when a party explicitly reserves attorney-client privilege during pre-indictment presentations, and the government acquiesces by its consistent course of conduct, the privilege is preserved.

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Case brief last reviewed 2026-01-17. Prepared by CaseReader from the published opinion.