In re Itron, Inc., 883 F.3d 553

Itron bought SmartSynch and, post-closing, discovered SmartSynch had an agreement with Consert that imposed large liabilities; Itron litigated and ultimately settled with Consert for $18 million.
Itron then sued three former SmartSynch officers for negligent misrepresentation, seeking as damages the Consert litigation and settlement costs.
Defendants moved to compel broad production of Itron documents, including all communications to/from Itron counsel and board materials related to the Consert litigation and settlement.
The magistrate judge ordered production, reasoning Itron waived attorney-client privilege by filing suit and because the privileged materials were relevant to reasonableness/necessity of the Consert settlement.
Itron objected under Mississippi law (relying on Jackson Medical), stipulated it would not affirmatively use privileged communications if the court preserved privilege, and petitioned for mandamus when district court affirmed the magistrate judge.
The Fifth Circuit granted mandamus, concluding the complaint alone did not effect waiver and the magistrate judge misapplied Mississippi waiver law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether filing suit alone waives attorney-client privilege	Itron: filing suit does not waive privilege; waiver requires affirmative use/reliance on privileged communications	Defs: filing suit that makes privileged info relevant waives privilege; relevance alone suffices	Filing suit alone does not waive privilege; waiver requires affirmative reliance (no waiver here)
Standard for implied waiver under Mississippi law	Itron: Jackson Medical requires specific reliance on counsel; relevance insufficient	Defs: broader Hearn-style or relevance-based waiver should apply	Mississippi law follows Jackson Medical/Metro Life approach; relevance alone insufficient
Relevance of counsel opinions to reasonableness/mitigation defenses	Itron: reasonableness is an objective inquiry based on facts and experts, not counsel's subjective advice	Defs: counsel opinions are highly relevant to whether settlement was reasonable/compelled	Court: objective standard controls; counsel opinions not automatically "vital"; privilege stands unless relied upon
Appropriateness of mandamus relief	Itron: interlocutory appeal inadequate; disclosure of privilege would be irreparable; magistrate clearly erred	Defs: mandamus is extraordinary and Itron has not shown clear, indisputable right	Court granted mandamus: clear legal error, no adequate alternative review, and issue merits correction

Jackson Med. Clinic for Women, P.A. v. Moore, 836 So.2d 767 (Miss. 2003) (adopting rule that waiver occurs when party affirmatively relies on attorney communications)
Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 249 Conn. 36 (Conn. 1999) (privileged communications not put in issue merely because settlement reasonableness is contested)
Conkling v. Turner, 883 F.2d 431 (5th Cir. 1989) (discusses waiver when party places privileged information at issue; does not support relevance-only waiver)
Swidler & Berlin v. United States, 524 U.S. 399 (U.S. 1998) (rejecting ex post balancing tests that would make privilege contingent on later evaluations)
Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege essential to full and frank communication; protects communications, not underlying facts)
In re Burlington N., Inc., 822 F.2d 518 (5th Cir. 1987) (relevance alone insufficient to overcome privilege)