Which statement correctly describes waiver of privilege?

Which statement correctly describes waiver of privilege?

• A. Waiver can occur by disclosure to third parties or failure to timely claim privilege.
• B. Waiver occurs automatically when a document is filed with the court.
• C. Waiver occurs only by express court order.
• D. Waiver never occurs; privileges are absolute.

Answer: (A)

Privilege protections are not absolute; they can be waived by actions that undermine confidentiality. If you disclose a privileged communication to someone who isn’t part of the privilege, the confidentiality key of the privilege is lost for that material, so the privilege may be waived to the extent of that disclosure. Similarly, failing to timely assert the privilege in response to discovery or other proceedings can be treated as a waiver, because the other party is allowed to use or obtain the information. That’s why the correct statement highlights both: disclosure to third parties and failure to timely claim the privilege. The idea that waiver happens automatically when something is filed with the court isn’t correct in all circumstances—filing can be sealed or protected, and waiver isn’t automatic just from submission. Waiver can also occur without an express court order, and privileges are not absolutely immune from waiver.

Privilege protections are not absolute; they can be waived by actions that undermine confidentiality. If you disclose a privileged communication to someone who isn’t part of the privilege, the confidentiality key of the privilege is lost for that material, so the privilege may be waived to the extent of that disclosure. Similarly, failing to timely assert the privilege in response to discovery or other proceedings can be treated as a waiver, because the other party is allowed to use or obtain the information.

That’s why the correct statement highlights both: disclosure to third parties and failure to timely claim the privilege. The idea that waiver happens automatically when something is filed with the court isn’t correct in all circumstances—filing can be sealed or protected, and waiver isn’t automatic just from submission. Waiver can also occur without an express court order, and privileges are not absolutely immune from waiver.