Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 1:13-cv-23998

Background

Plaintiffs (Kipnis and Welt as trustee for Kibler) sue bank defendants over CARDS tax-shelter transactions; Tax Court disallowed losses and assessed liability.
Mr. Kibler testified in Tax Court that he relied generally on two attorneys (including Robert Stamen) and others to review the transactions.
Plaintiffs produced some privileged memoranda from attorney Ron Braley after Braley copied a third party (alleged conspirator Roy Hahn), prompting defendants to argue waiver.
Plaintiffs contend they did not waive privilege for communications with a different attorney (Robert Stamen) and represent they will not rely on Stamen’s advice in this lawsuit.
Defendants seek production of Stamen communications, arguing (1) waiver via disclosure of Braley materials and (2) waiver under the “at-issue” doctrine based on Kibler’s Tax Court testimony.
The magistrate judge reserved ruling and then held that privilege as to Stamen remains intact absent Plaintiffs invoking his advice; waiver as to Braley does not automatically waive communications with Stamen.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did production of Braley materials waive privilege as to Stamen?	No—Braley’s disclosure was not Plaintiffs’ voluntary waiver; waiver as to one lawyer does not waive privilege as to a different law firm.	Yes—subject-matter waiver of Braley materials should extend to all CARDS-related legal advice, including Stamen.	Held for Plaintiffs: waiver as to Braley does not automatically waive privilege for Stamen; limited waiver doctrine applies.
If a waiver occurred as to Braley, what is its scope?	Any waiver is limited; fairness and circumstances counsel against broad subject-matter waiver.	Waiver should be broad because both attorneys advised on same transaction.	Held for Plaintiffs: scope is limited; factors (nature of disclosure, purpose, prejudice) weigh against extending waiver to Stamen.
Does Kibler’s Tax Court testimony trigger an "at-issue" waiver for Stamen communications?	No—Kibler’s statements were vague, non-specific, and Plaintiffs will not rely on Stamen’s advice here.	Yes—Kibler’s prior testimony that he relied on Stamen makes Stamen’s advice "at issue."	Held for Plaintiffs: Tax Court testimony is too general; "at-issue" doctrine does not apply.
Can Plaintiffs introduce Stamen’s advice at trial after representing they will not rely on it?	Plaintiffs represented they will not use Stamen’s advice; so they cannot later assert reliance.	If Plaintiffs later assert reliance, defendants should gain access to privileged materials.	Held: Plaintiffs are bound by their representations; if they assert reliance later, privilege may be lost and discovery permitted.

Key Cases Cited

Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504 (Fla. 2d DCA 2006) (waiver as to one law firm does not automatically waive privilege as to other counsel)
Volpe v. Conroy, Simberg & Ganon, P.A., 720 So. 2d 537 (Fla. 4th DCA 1998) (two attorneys on same matter does not waive privilege between client and one lawyer)
Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So. 2d 1021 (Fla. 4th DCA 1998) (relevance alone does not overcome attorney-client privilege)
Paradise Divers, Inc. v. Upmal, 943 So. 2d 812 (Fla. 3d DCA 2006) (recognizing limited or subject-matter waiver)
Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 300 F.R.D. 590 (S.D. Fla. 2014) (factors for determining scope of subject-matter waiver)
QBE Ins. Corp. v. Jordan Enters., Inc., 286 F.R.D. 661 (S.D. Fla. 2012) (no bright-line waiver test; courts weigh circumstances and prejudice)
Shafnaker v. Clayton, 680 So. 2d 1109 (Fla. 1st DCA 1996) (communications with other attorneys protected despite usefulness to opponent)