§ 8.01-420.7.Attorney-client privilege and work product protection; limitations on waiver.
Chapter 14. Evidence · Article 9. Miscellaneous Provisions · Last amended 2010 · Last verified July 16, 2026
In one sentenceSection 8.01-420.7 limits subject-matter waiver of attorney-client privilege or work product protection to intentional disclosures on the same subject matter that fairness requires be considered together, protects inadvertent disclosures where reasonable precautions and prompt corrective steps were taken, and lets a court order that disclosure in one case will not waive protection elsewhere.
A.When disclosure of a communication or information covered by the attorney-client privilege or work product protection made in a proceeding or to any public body as defined in § 2.2-3701 operates as a waiver of the privilege or protection, the waiver extends to an undisclosed communication or information only if:
1.The waiver is intentional;
2.The disclosed and undisclosed communications or information concern the same subject matter; and
3.The disclosed and undisclosed communications or information ought in fairness be considered together.
B.Disclosure of a communication or information covered by the attorney-client privilege or work product protection made in a proceeding or to any public body as defined in § 2.2-3701 does not operate as a waiver of the privilege or protection if:
1.The disclosure is inadvertent;
2.The holder of the privilege or protection took reasonable steps to prevent disclosure; and
3.The holder promptly took reasonable steps to rectify the error, including, if applicable, complying with the provisions of subdivision (b) (6) (ii) of Rule 4:1 of the Rules of the Supreme Court.
C.A court may order that the privilege or protection is not waived by the disclosure connected with the litigation pending before the court, in which case the disclosure does not operate as a waiver in any other proceeding.
D.An agreement on the effect of the disclosure in a proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
E.This section shall not limit any otherwise applicable waiver of attorney-client privilege or work product protection by an inmate who files an action challenging his conviction or sentence.
Plain-English Summary
Disclosing a privileged document does not have to blow open everything related to it. Subsection A limits how far a waiver spreads: even when disclosure does waive the privilege or work-product protection, that waiver reaches undisclosed material only if the disclosure was intentional, the disclosed and undisclosed material concern the same subject matter, and fairness calls for considering them together. Miss any one of those three conditions and the waiver stays confined to what was disclosed.
Subsection B protects the more common scenario — an accidental production during discovery. A disclosure does not waive the privilege at all if it was inadvertent, the holder took reasonable steps to prevent it, and the holder promptly took reasonable steps to fix the mistake, including following the clawback procedure in Rule 4:1(b)(6)(ii) where it applies.
Subsections C and D give the parties and the court additional tools: a court can enter an order that disclosure connected to the pending case will not count as a waiver in any other proceeding, and the parties can agree between themselves on the effect of a disclosure, though that agreement binds only them unless a court incorporates it into an order.
Subsection E draws one line the rest of the section does not touch: it does not limit whatever waiver an inmate already triggers by filing an action challenging a conviction or sentence.
Frequently Asked Questions
If I disclose one privileged document, does that waive privilege over everything related to it?
Only if the waiver was intentional, the disclosed and undisclosed communications concern the same subject matter, and fairness requires considering them together — all three conditions must be met.
Does accidentally producing a privileged document during discovery waive the privilege?
Not if the disclosure was inadvertent, the holder took reasonable steps to prevent it, and the holder promptly took reasonable steps to correct it, including complying with Rule 4:1(b)(6)(ii) where applicable.
Can a court protect a party from broader waiver when disclosure happens during litigation?
Yes. A court may order that the privilege or protection is not waived by a disclosure connected with the case before it, and that order also prevents waiver in any other proceeding.
Are agreements between parties about the effect of disclosure binding on everyone?
No. Such an agreement binds only the parties who made it, unless it is incorporated into a court order.
Does this section protect an inmate’s privileged communications when challenging a conviction?
No. The section does not limit whatever waiver of privilege or work-product protection already applies when an inmate files an action challenging a conviction or sentence.
Amendment History
2010, c. 350.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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