The Implied Waiver Doctrine and the Good Faith Defense

December 15, 2025  |  New York Law Journal

Southern District Magistrate Judge Gabriel W. Gorenstein’s recent opinion in Oklahoma Firefighters Pension & Retirement System v. Elon Musk reinforces that defendants cannot argue that they had a good faith belief in the lawfulness of their conduct while simultaneously invoking the attorney-client privilege in discovery to shield their communications with counsel relevant to their conduct. In their latest New York Law Journal article, Morvillo Abramowitz Grand Iason & Anello partners Ed Spiro and Chris Harwood analyze the decision, explaining how Judge Gorenstein relied on Second Circuit precedent concerning the implied waiver doctrine and how he applied principles of fairness underlying the doctrine to reject defendants’ argument that waiver requires an explicit reliance on counsel’s advice.

The Implied Waiver Doctrine and the Good Faith Defense