Outpost Solar, LLC v. Henry, Henry, and Underwood, P.C., M2016-00297-COA-R9-CV

BNL Technical Services (BNL) and Outpost Solar sued their former attorney, Robert Henry, alleging legal malpractice and conflicts of interest arising from Henry’s simultaneous representation of the Industrial Development Board and parties related to Outpost/BNL.
BNL’s malpractice theory: Henry facilitated the Board’s sale of property to Silicon Ranch in a way that harmed BNL and deprived it of expected business benefits; BNL alleged it discovered Henry’s role in late 2013/early 2014.
Henry defended, asserting BNL’s claim was time-barred by Tennessee’s one-year statute of limitations for legal malpractice and moved for summary judgment on that basis.
Henry sought production of communications between BNL and its subsequent counsel (subpoena to counsel), which BNL withheld as attorney-client privileged; the trial court appointed a special master to review withheld documents for relevance to the limitations defense.
The special master identified eight documents relevant to the discovery-rule question; the trial court concluded BNL impliedly waived the privilege by invoking the discovery rule and ordered production of those documents; BNL obtained permission to pursue interlocutory appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether invoking the discovery rule to avoid the one-year malpractice statute of limitations impliedly waived attorney-client privilege over communications with new counsel	BNL: No waiver occurred because it did not rely on privileged communications to prove the discovery-rule; privilege remains intact	Henry: BNL put its knowledge and timing at issue by asserting the discovery rule, so claimant impliedly waived privilege as to communications relevant to when BNL learned of the claim	Court: Affirmed implied waiver under Bryan test—BNL’s assertion of the discovery rule put privileged communications at issue and the documents were vital to Henry’s defense

Kohl v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998) (articulates two-prong discovery rule for malpractice: injury and knowledge)
Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995) (constructive knowledge standard for discovery rule)
Bryan v. State, 848 S.W.2d 72 (Tenn. Crim. App. 1992) (sets three-part test for implied waiver of privilege when party’s affirmative conduct puts privileged information at issue)
Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn. Ct. App. 2012) (discusses scope and limits of psychotherapist/privilege and waiver analysis)
Culbertson v. Culbertson, 455 S.W.3d 107 (Tenn. Ct. App. 2014) (applies protective approach to waiver and outlines mixed question review standard)
Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010) (standard of review for discretionary discovery rulings)