Alaska Comm. R. Evid. 510
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.
Alaska Comm. R. Evid. 510