N.M. R. Evid. 11-511
A person who possesses a privilege against disclosure of a confidential matter or communication waives the privilege if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is a privileged communication.
N.M. R. Evid. 11-511
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule; after "A person", deleted "upon whom these rules confer" and added "who possesses", after "privilege if the person", deleted "or person's predecessor while holder of the privilege", and after "if the disclosure", deleted "itself". The 1993 amendment, effective December 1, 1993, substituted "the person or person's" for "he or his" in the first sentence.
For statutory provision as to waiver of privilege, see Section 38-6-6 NMSA 1978 and Rule 11-501 NMRA. Waiver of right found. - Where the defendant employed an attorney to investigate allegations made by the defendant's internal ethics investigators and report his findings, the defendant waived the attorney-client privilege with respect to the attorney's report when the defendant relied on the report in defending against plaintiff's claim. Gingrich v. Sandia Corp., 2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135, cert. denied, 2007-NMCERT-007. Scope of waiver. - Where the defendant waived the attorney-client privilege with respect to an attorney's report that criticized the plaintiff, the scope of the waiver extended to communications between the attorney and the defendant's managers and in-house counsel relating to the report and to the defendant's in-house counsel's work product relating to the report that was communicated to the defendant's managers, but did not extend to the attorney's work product that was not disclosed or communicated to the defendant. Gingrich v. Sandia Corp., 2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135, cert. denied, 2007-NMCERT-007. This rule applies to predecessor of party asserting claim, and covers both consent to a disclosure of "any significant part of the matter or communication" as well as outright disclosure. State v. Jackson, 1982-NMSC-022, 97 N.M. 467, 641 P.2d 498. Offensive or direct use of priveleged materials required. - Waiver of the attorney-client privilege is governed exclusively by this rule; thus, offensive or direct use of privileged materials is required before the party will be deemed to have waived its attorney-client privileges. Pub. Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, 129 N.M. 487, 10 P.3d 166. Voluntary disclosure of results of medical examination constitutes waiver of defendant's right against forced disclosure and also destroys any privileges claimed by the defense. State v. Jackson, 1982-NMSC-022, 97 N.M. 467, 641 P.2d 498. Voluntary disclosure of discussion of "turning state's evidence". - A witness opens up the area of attorney-client communications regarding the subject matter of granting immunity in exchange for favorable prosecution testimony by a voluntary disclosure of a discussion of "turning state's evidence." The trial court cannot then refuse to allow the witness to be questioned on this matter, or refuse to permit the defense to subpoena the witness' lawyer, on the alleged grounds of attorney-client privilege. State v. Ballinger, 1983-NMCA-034, 99 N.M. 707, 663 P.2d 366, rev'd on other grounds, 1984-NMSC-003, 100 N.M. 583, 673 P.2d 1316. Waiver of right found. - Where, prior to defendants' first objection to plaintiff's cross-examination of one of the defendants concerning privileged conversations with his attorney, the defendant volunteered privileged information about his attorney's instructions, and defendants' attorney failed to object to three questions that implicated the privilege, and, after the one and only objection made by defendants was overruled, the defendants failed to object to several subsequent questions that also implicated the privilege, defendants waived their right to assert attorney-client privilege on the matter. DeMatteo v. Simon, 1991-NMCA-027, 112 N.M. 112, 812 P.2d 361. Defendant's communications with his trial counsel were not privileged because he disclosed the communications to a third party. State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses § 294. Who may waive privilege of confidential communication to physician by person since deceased, 97 A.L.R.2d 393. Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244. Waiver of evidentiary privilege by inadvertent disclosure-state law, 51 A.L.R.5th 603. 97 C.J.S. Witnesses §§ 306 to 314.