Alaska R. Evid. 510 commentary

The central purpose of most privileges is the promotion of

some interest or relationship by endowing it with a supporting

secrecy or confidentiality. It is evident that the privilege should

terminate when the holder by his own act destroys this

confidentiality. McCormick (2d ed.) §§ 83, 93, 103; 8

Wigmore §§ 2242, 2327-2329, 2374, 2389-2390. Rule 510

codifies standard practice in acknowledging that a privilege

can be waived. It follows the approach of Rule 231 of the

Model Code of Evidence, Rule 37 of the Uniform Rules of

Evidence, and section 912 of the California Evidence Code

(West). See 2 J. Weinstein & M. Berger, Weinstein’s Evidence

Paragraph 511[02] (1979).

The rule is designed to be read with a view to what it is that

the particular privilege protects. For example, the lawyer-client

privilege covers only communications, and the fact that a client

has discussed a matter with his lawyer does not insulate the

client against disclosure of the subject matter discussed,

although he is privileged not to disclose the discussion itself.

See McCormick (2d ed.) § 93. The waiver here provided for is

similarly restricted. Therefore a client, merely by disclosing a

subject which he had discussed with his attorney, would not

waive the applicable privilege; he would have to make

disclosure of the communication itself in order to effect a waiver. By traditional doctrine, waiver is the intentional relinquishment of a known right. However, in the confidential

privilege situations, once confidentiality is destroyed through

voluntary disclosure no subsequent claim of privilege can

restore it, and knowledge or lack of knowledge of the existence

of the privilege appears to be irrelevant. 8 Wigmore § 2327.