Also known as: cat is out of the bag · letting the cat out of the bag · disclosure · waiver by revelation
Written by attorneys · grounded in primary & secondary sources — see below
A situation in which previously confidential or privileged information has already been revealed. Once the information is disclosed, subsequent efforts to maintain secrecy or assert protections become ineffective because the revelation cannot be undone.
Charlotte Chung served discovery requests on Crystal Dynamics. After weeks without a response, she filed a motion to compel and certified her good-faith attempts to confer. The court granted the motion because the information had already been withheld long enough to require judicial intervention.
Carlos Castillo's firm produced an email chain containing attorney work product during document review. The recipient immediately used the contents in a brief. Even though the firm later clawed back the document, the court found the protection lost because reasonable steps to prevent disclosure had not been taken before production.
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Cameron Cruz, a director of Crown Pharmaceuticals, voted on a supply contract with a company he secretly controlled. He never told the other qualified directors about his interest. The transaction could not be ratified under the statute because the required disclosure never occurred before the vote.
Christine Castro left a client file on a train. A stranger found it and posted excerpts online. The firm had no encryption or tracking on the file. The court held that the lawyer failed to make reasonable efforts to prevent unauthorized disclosure of client information.
Christopher Collins told his wife about a crime during a private conversation at home. She later repeated the details to investigators. Once the wife disclosed the conversation, the government could use her testimony because the marital communications privilege no longer shielded the content.
Craig Caldwell, a partner, bought partnership property at a below-market price without telling the others. After full disclosure of the facts, the remaining partners voted to ratify the purchase. The ratification cured the loyalty breach that would otherwise have existed.
Once the information is out, efforts to assert the privilege or protection are usually ineffective because the disclosure cannot be undone. Courts focus on whether reasonable preventive steps were taken beforehand.
Yes. Partners or directors may authorize or ratify a transaction after receiving complete material facts, which removes the violation that would otherwise exist.
A lawyer must make reasonable efforts to prevent inadvertent or unauthorized disclosure before any breach occurs. Failure to do so can result in loss of protection and professional discipline.
…to associate and privacy in one’s associations,” noting that freedom of association is a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their…