The Perils of Tactical Waiver in Litigation

When a party discloses privileged material to gain a tactical advantage in litigation, the decision may appear narrow and controlled.

However, the Commercial Court’s judgment in Gorbachev v Guriev [2024] EWHC 622 (Comm) shows how a seemingly limited waiver can trigger a far broader disclosure obligation than intended. The ruling is now one of the leading modern cases on collateral waiver, the cherry‑picking rule, and the dangers of deploying privileged documents.

Background

The dispute involved two businessmen, Alexander Gorbachev and Andrey Guriev. In 2012, the claimant instructed counsel to prepare a chronology of events based on his instructions. A revised version followed shortly after. Years later, during litigation, the claimant voluntarily disclosed the first chronology to demonstrate consistency between his original account and his pleaded case.

The defendant argued that this voluntary disclosure resulted in a broader waiver of privilege and sought disclosure of:

1. the later version of the chronology, and
2. documents evidencing the claimant’s instructions that led to the preparation of both chronologies.

The Court’s Decision

Identifying the “transaction”

The Court held that the disclosed chronology was deployed to show the consistency of the claimant’s account over time. That consistency was the relevant “transaction” or issue.

Collateral waiver and fairness

The Court reaffirmed the core principle: once a party waives privilege to advance its case on an issue, fairness may require disclosure of all privileged material forming part of the same transaction.

Accordingly, the Court found that:

– Waiver extended to the revised chronology.

– Waiver also extended to documents evidencing the claimant’s instructions to counsel.

– It would be unfair to allow the claimant to present only part of the picture where the issue in play was the consistency of his account.

However, the Court confirmed that privilege over irrelevant material could be maintained through redaction.

Key Lessons for Anybody Involved in Civil and Commercial Litigation

1. Tactical waiver is fraught with danger

Disclosing privileged material to support part of a case can result in much broader disclosure. The Gorbachev decision illustrates that tactical waiver often leads to the loss of privilege over entire categories of related documents.

2. Define the relevant issue or “transaction” with precision

Collateral waiver depends on identifying the issue for which the privileged document is deployed. If the court defines that issue broadly, the resulting waiver may require extensive disclosure.

3. Partial disclosure can lead to full disclosure

Waiving privilege over one version of a document—such as a draft chronology—may require revealing all other versions, including the underlying instructions and communications that informed them.

4. Cherry‑picking is not permitted

Courts will not allow selective reliance on favourable privileged material. If a party introduces privileged material to support its case, the opposing party is entitled to see the whole picture.

5. Privilege decisions must be strategic, not reactive

Before waiving privilege, practitioners should assess:

– the issue to which the document relates,

– the scope of potentially related documents,

– whether the waiver places internal strategy or legal advice at risk.

6. Redactions may still be possible – if justified

Where collateral waiver arises, irrelevant privileged content may still be redacted, but only with a clear explanation as to why it falls outside the transaction.

7. Privilege must be monitored throughout litigation

Privilege and waiver risks evolve throughout the case. Any reference to privileged documents in pleadings, disclosure or witness statements may trigger waiver and must be reviewed immediately.

Conclusion

Gorbachev v Guriev is a cautionary reminder that tactical waiver in litigation carries significant risk. Deploying privileged material rarely remains a narrow step. Once privilege is waived for a particular issue, fairness may require disclosure of all related material. Litigators must take a strategic and proactive approach to privilege, thinking several steps ahead before putting any privileged document “in play”.

DISCLAIMER: The information provided on this blog is for general guidance only and does not constitute legal advice. If you require tailored legal advice, please contact us to discuss your specific circumstances.

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