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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 20 of 40 at 227-28. The Second Circuit also noted that the Hearn test “has been subject to academic criticism. See, e.g., Richard L. Marcus, The Perils of Privilege: Waiver and the Litigator, 84 MICH. L. REv. 1605, 1628-29 (1986); Note, Developments in the Law-Privileged Communications, 98 HARV. L. REV. 1650, 1641-42 (1985) (identifying “the faults in the Hearn approach’). In light of these strong criticisms of Hearn, the Second Circuit decided that “[w]e agree with its critics that the Hearn test cuts too broadly and therefore conclude that the District Court erred in applying it here. . .. Nowhere in the Hearn test is found the essential element of reliance on privileged advice in the assertion of the claim or defense in order to effect a waiver.” 546 F.3d at 229 (emphasis added). The Second Circuit held that, for an “at issue” waiver to occur, “a party must re/y on privileged advice from his counsel to make his claim or defense.” Id. (emphasis added). In light of the Second Circuit’s holding, recent cases from this Court have explained that “reliance on privileged advice in the assertion of the claim or defense is an ‘essential element’ of a claim of waiver.” Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, No. 04 CIV 10014 PKL, 2009 WL 3111766, at *16 (S.D.N.Y. Sept. 28, 2009).° For the sake of completeness, it may be relevant to note that New York state privilege law applies the same ® The Second Circuit cited numerous cases, including cases from this Court — e.g., Pereira v. United Jersey Bank, Nos. 94 Civ 1565 & 94 Civ 1844, 1997 WL 773716, at *3 (S.D.N.Y. Dec.11, 1997) (“Hearn is problematic insofar as there are very few instances in which the Hearn factors, taken at face value, do not apply and, therefore, a large majority of claims of privilege would be subject to waiver.”); Allen v. West Point-Pepperell, Inc., 848 F.Supp. 423, 429 (S.D.N.Y.1994) (noting that district courts within this Circuit have reached conflicting decisions in the application of Hearn, and rejecting reliance “upon a line of cases in which courts have unhesitatingly applied a variation of the Hearn balancing test”); Connell v. Bernstein-Macaulay, Inc., 407 F.Supp. 420, 422 (S.D.N.Y.1976) (“The actual holding in [Hearn] is not in point because the party there asserting the privilege had expressly relied upon the advice of counsel as a defense to the plaintiff's action.”); Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir.1994) (deeming Hearn to be of “dubious validity” because, although it “dress[es] up [its] analysis with a checklist of factors, [it] appear[s] to rest on a conclusion that the information sought is relevant and should in fairness be disclosed”). ° The Aristocrat Leisure case accordingly rejected a party’s reliance on the same authority that Defendant relies upon here. See Aristocrat, 2009 WL 3111766 at *16 n.6 (discussing Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506 (S.D.N.Y. 2010), and then noting in the next sentence that the Hearn test relied upon by Bank Brussels’ “recently has been criticized by the Second Circuit on this very issue.”). 13