## Facts

- Claus von Bülow was prosecuted in Rhode Island for allegedly causing his wife Martha von Bülow’s coma; after reversal of his first conviction, he was acquitted on retrial.
- After the acquittal, Martha’s children (acting as her next friends) filed a federal civil action in the Southern District of New York asserting tort and RICO claims arising from the same events.
- While the civil case was pending, von Bülow’s appellate counsel published a book recounting the criminal defense and including excerpts of attorney-client communications.
- The civil plaintiffs argued the book and related publicity waived von Bülow’s attorney-client privilege as to those communications and their subject matter.
- The district court found waiver and ordered broad discovery into: (i) the entire conversations from which excerpts were published, (ii) all related subject areas, and (iii) related communications with other defense attorneys.
- Von Bülow petitioned the Second Circuit for a writ of mandamus to vacate the discovery order.

## Issues

1. Whether extrajudicial publication of excerpts of attorney-client communications results in waiver of the attorney-client privilege.
2. If waiver occurred, whether it extends beyond the specific disclosed communications to a broad subject-matter waiver covering related communications with counsel.
3. Whether mandamus is an appropriate remedy to prevent compelled disclosure of allegedly privileged material under a novel and overbroad discovery order.

## Decision

- The Second Circuit granted mandamus and vacated the district court’s discovery order.
- The court rejected the district court’s broad subject-matter waiver ruling.
- The court held that extrajudicial disclosure (such as in a book or media promotion) does not, by itself, trigger sweeping subject-matter waiver in later litigation.
- Any waiver was limited to the specific communications actually disclosed, absent use of privileged material to obtain an advantage in a judicial proceeding.
- Mandamus was appropriate because compelled disclosure of privileged communications would cause irreparable loss of confidentiality and raised issues of first impression not adequately remedied by appeal after final judgment.

## Legal Principles

- Attorney-client privilege may be waived by voluntary disclosure, but waiver doctrine is shaped by the purpose of preventing unfairness in litigation.
- Broad subject-matter waiver is generally warranted when a party discloses privileged communications to gain a tactical advantage in a judicial proceeding (preventing “sword and shield” use).
- Extrajudicial disclosures (e.g., books, press, public narrative accounts) do not automatically cause subject-matter waiver in separate litigation.
- When waiver is found based on disclosure outside litigation, it is confined to the specific communications revealed, unless the privilege holder affirmatively relies on privileged material in court.
- Mandamus may issue to vacate discovery orders compelling production of allegedly privileged material where the harm from disclosure is irreversible and ordinary appellate review is inadequate.

## Conclusion

The Second Circuit vacated an overbroad discovery order and held that public disclosure of selected attorney-client communications in a non-judicial setting did not create a sweeping subject-matter waiver in subsequent civil litigation; extraordinary relief was warranted to prevent irreversible loss of privilege.


In re von Bülow, 828 F.2d 94 (2d Cir. 1987)