Before I turn to the “purpose” clause of the waiver, I will say a word about the time limitation: June 1, 2011 to November 10, 2011. If those dates are co-extensive with the retainer itself, the time limitation presents no difficulty. Communications outside the period are simply not privileged at all. But if the retainer extended beyond those dates, then the limitation on the waiver becomes problematic. In that case, I would see the limitation as being equivalent to a subject matter limitation. Like a subject matter limitation, it is governed by the law as found in cases such as Bone v. Person. It is ineffective to the extent that it misleads the other parties or the court. It does not empower Panchbhaya to pick and choose between the favourable and the unfavourable by the simple expedient of an artificial start or end date.
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