Michael E. Tennenbaum Barry A. Porter Marylyn Hoenemeyer Robert C. Becker, Jr. v. Deloitte & Touche, and Thomas P. Williams, Chapter 7 Trustee

We must decide whether a promise by a holder of the attorney-client privilege to waive the privilege, contained in a written settlement agreement in one lawsuit, waives the holder’s right to claim that privilege in a separate lawsuit, in the absence of the holder’s disclosure of a privileged communication.

Thomas P. Williams, the Chapter 7 Bankruptcy Trustee for several related Glen Ivy corporate entities, appeals the district court’s order requiring Glen Ivy’s former lawyer, Maurice Hart, to answer plaintiff Michael E. Tennenbaum’s deposition questions that ask him to reveal privileged communications. The district court concluded that Williams waived his right to claim the privilege as to these questions by agreeing, in settlement of a related state court action, that he “will waive the attorney-client privilege as to pre-petition communications with all counseK”

We hold that Williams’s mere agreement to waive the privilege in the Kester action, unaccompanied by a disclosure of privileged documents, did not constitute a waiver of his right to claim that privilege subsequently. As we have jurisdiction over Williams’s appeal of the district court’s order pursuant to the…