Massachusetts Courts Update Business Litigation Rules: First Circuit's Subject Matter Waiver of Attorney-Client Privilege Endorsed, Work Product Doctrine Scope Clarified
On July 25, 2025, Judge Debra A. Squires-Lee issued a significant decision regarding the attorney-client privilege in Massachusetts. The ruling, in the case Allen v. Christensen et al., No. 2284CV02756-BLS2, provides important clarity and commonsense safeguards regarding subject matter waiver and the work product doctrine in Massachusetts.
The authors of the article represent the plaintiff in the case, and the decision reinforces the long-standing law about the scope of the work product doctrine. The court ruled that subject matter waiver occurs only when the party has disclosed privileged information in a selective, misleading way such that fairness requires an extension of the waiver to related communications.
Traditionally, courts found that once a privilege holder waived privilege as to some privileged material, that waiver extended to all other materials concerning the same subject matter. However, in Allen v. Christensen et al., the plaintiff had forwarded a limited number of emails with his lawyers regarding a dispute to members of his family, and later, the defendants obtained these forwarded email messages in discovery. The Court denied the motion to compel, embracing a leading federal case limiting subject matter waiver to judicial, rather than extrajudicial, disclosures.
The work product doctrine’s scope was also clarified to protect tangible materials prepared in anticipation of litigation, including attorney mental impressions, except where the opposing party shows substantial need and cannot obtain the materials by other means. This represents a notable development confirming that mere waiver of a communication does not automatically waive privilege over the entire subject matter unless fairness dictates.
The decision aligns with federal First Circuit precedent, which is influential in Massachusetts courts, thus providing clearer guidance on limited subject matter waiver and reinforcing the work product protection against undue disclosure except in narrow circumstances.
Prior to this, Massachusetts law generally protected attorney-client communications and work product with recognition of common-law privilege principles. However, Allen v. Christensen provides definitive state-level guidance harmonizing with federal standards. No contradictory rulings or alternate standards specific to Massachusetts have emerged post-Allen v. Christensen according to the available recent reports, underscoring this decision’s importance in formulating legal strategy and discovery scope in Massachusetts litigation involving attorney-client privilege and work product issues.
Moreover, clients can and often do prepare chronologies to refresh their memory and assist them in conveying factual information to counsel, and these documents are protected, even without being physically provided to their counsel. Similarly, documents prepared for an attorney in anticipation of litigation are entitled to the protection of the work product doctrine, even if not sent to counsel.
Many courts have attempted to rein in this draconian approach to subject matter waiver by balancing the consequences of disclosure with principles of fairness. The Superior Court's decision in Allen v. Christensen et al. follows this trend, offering a more nuanced and equitable approach to the application of the attorney-client privilege and work product doctrine in Massachusetts.
- In the wake of the Allen v. Christensen et al. decision, the plaintiff's legal team may now strategize with more clarity in Massachusetts litigation, as the court clarified the work product doctrine to protect tangible materials prepared in anticipation of litigation, while limiting subject matter waiver to judicial disclosures.
- As the scope of the work product doctrine was confirmed to safeguard not only written documents but also attorney mental impressions, finance-focused businesses engaged in litigation in Massachusetts should take notice, as the ruling may provide them with a more equitable and nuanced application of the attorney-client privilege and work product doctrine.
