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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 19 of 40 6, 2016 WL 175918 at * 6 (applying New York privilege law) (citing Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96, 102 (S.D.N.Y. 2007) (“Because this Court’s subject matter jurisdiction is based upon diversity . . . state law provides the rule of decision concerning the claim of attorney-client privilege.”)). Accordingly, an argument can be made that New York state law applies in this case’ — but Defendant does not explain why she jumps to federal law. As explained above, in the particular context of a waiver argument, Federal Rule of Evidence 502 applies the more protective of state law or federal law in determining whether a waiver of privilege has occurred. In this case, the controlling federal law is at least as protective as Florida law. The controlling federal law here comes from the Second Circuit, including Jn re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008) — a case not even cited, much less discussed, by the Defendant. In view of the importance of the attorney-client privilege, the Second Circuit in that case held that any finding of waiver should be made with “caution.” Jd. at 228. Rather than cite this controlling Second Circuit precedent, Defendant relies on a 2002 case from this Court applying the Hearn “at issue” doctrine. See Mot. to Compel at 8 (citing Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506. 509-10 (S.D.N.Y. 2002) (Ellis, Magistrate Judge) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)). Defendant goes on to argue that “courts have generally applied the Hearn [at issue] doctrine liberally, finding a broad waiver of attorney-client privilege where a party asserts a position ‘the truth of which can only be assessed by examination of the privilege communication.” Mot. to Compel at 8 (internal quotation omitted). Defendant fails to recognize that the Second Circuit has explicitly disavowed the Hearn doctrine. In In re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008), the Second Circuit explained that “{c]ourts in our Circuit and others have criticized Hearn and have applied its tests unevenly.” Id. 7 As a protective matter, Ms. Giuffre will also provide citations to New York state authorities in this response. 12