dissenting.
The court here determines that granting defendant Sinclair’s motion for summary judgment was proper because the Union, as plaintiff, did not show actual malice as a subjective criterium when focused on the state of mind of the defendant’s decision-makers in questioning whether affidavit and deposition evidence was sufficient to establish a triable issue of fact. However, the reason why the Union could not show malice is the crux of this case: the attorney-client privilege, and whether it was properly applied in denial of plaintiff’s discovery. In rejection of that pre-motion hearing discovery, the majority finds no waiver of the privilege, and relies on three theories: (1) the joint-client exception; (2) the raising of malice as an affirmative defense; and (3) the advice of counsel.
I dissent, and would find the malice evidence as hidden information to be discoverable because the data is necessary for review by the court in decision on defendant’s summary-judgment motion. The proof necessary for the Union to respond to the motion was extrapolated to be undis-coverable under a collusive shield of attorney-client privilege, since the two parties, by agreement, happened to “coincidentally” employ the same attorney. Conversely to that immunization, I would apply a rule of necessity to determine privilege and dis-coverability.1
*293Admissibility at trial is not of proper present focus, since the litigation proceeded only to the summary-judgment level and is consequently to be reviewed against the backdrop of such criteria. Factually, Sinclair moved for a motion to dismiss or in the alternative for summary judgment, with supporting affidavits. At that point, the burden shifted, and it became incumbent on the Union as the respondent to show there were material issues of fact. In Cordova v. Gosar, Wyo., 719 P.2d 625, 636 (1986), this court cited Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and expressed the view that:
“ ‘ * * * [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. [Citations.] In the language of the Rule, the non-moving party must come forward with “specific facts showing that there is a genuine issue for trial.” Fed.Rule Civ.Proc. 56(e) (emphasis added.)’ ”
The information of what occurred must be evaluated in the light of the facts surrounding the parties when this court examines the entire record, Wyoming Insurance Department v. Sierra Life Insurance Co., Wyo., 599 P.2d 1360 (1979), and considers this record from the viewpoint favorable to the party opposing the motion, the respondent. Greenwood v. Wierdsma, Wyo., 741 P.2d 1079 (1987); DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342 (1979).
The crucial question in this case becomes: how can the Union develop specific facts showing that there is a genuine issue for trial and thus defend against the summary-judgment motion filed by the defendants in the defamation action? The very nature of this suit commands that malice in publication is intrinsically involved. Consequently, to respond to the motion, the Union tried to discover the character of the conduct that the defendants engaged in— the character of the conduct which was inherently involved in the preparation of the joint representation and activity with their common attorney who, by the defendants’ own admission, participated in the decision to publish the letter. This discovery was subsequently denied on the basis of attorney-client or, more appropriately, “attorney-clients” privilege, which justifies the summary judgment after the Union was foreclosed from discovering the facts necessary to refute the summary-judgment motion. The theoretical validity of a limited privilege as enunciated by this court in Greenwood v. Wierdsma, supra, is justified even more by the factual parameters of this case.
By holding as they do, when the state of mind of the parties is at issue, the majority put their stamp of approval on the approach here taken that the subjective intent of the parties can be hidden by employing a common attorney and using the attorney-client privilege. A defendant can subsequently move for summary judgment and thwart the nonmoving party from discovering the facts necessary to fight such a motion. The underlying facts are permitted to be concealed, with the spoils going to the party who secreted them. Such a practice I cannot condone. The persuasive philosophy on the comparable Shield Law privilege-discovery dispute as elucidating fundamental constitutional concerns in Hatch-ard v. Westinghouse Broadcasting Co., Pa., 532 A.2d 346 (1987), affords prece-dential support for discovery in this case.
The majority correctly point out that malice is an element of the libel and thus the burden of pleading and proving that element rests on the plaintiff, and became an issue when the Union filed their complaint. However, the defendants, by affirmative acts, did place lack of malice in issue. The *294defendants in their answers to the amended complaint list 16 separate defenses, five of which directly refer to lack of malice on their part:
“21. As a further and separate defense, Defendants allege that they, at no time bore any malice or ill will toward Plaintiffs or any of them, but acted in full belief of the truth and verity of the statements in the Palacios letter.
# * * * * *
“25. As a further and separate defense, Defendants allege that the matters complained of are privileged under the guarantees of the First and Fourteenth Amendments to the Constitution of the United States and Article 1, Section 20 of the Constitution of the State of Wyoming because Plaintiffs are public figures and the subject publication was not made with any malice, or intent to harm the Plaintiffs.
“26. As a further and separate defense, Defendants allege the matters complained of are privileged in that the subject publication involves matters of public interest and was not made with any malice, or intent to harm the Plaintiff. “27. As a further and separate defense, Defendants allege that the matters complained of are privileged in that any publication made by these Defendants to other persons was upon a subject in which both have an interest and was not made with any malice, or intent to harm the Plaintiffs.
“28.- As a further and separate defense, Defendants allege that the statements complained of were published in the course of a labor dispute and as such are privileged and immune for a libel claim since they were not published with actual malice, nor with knowledge of their falsity nor with reckless disregard of whether they were true or false nor were the Plaintiffs injured thereby.”
Recently, some courts have taken a more justice-interest view of the placing-at-issue waiver of the attorney-client privilege, by applying what has been labeled as the Hearn analysis. Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash.1975); United States v.
Exxon Corporation, 94 F.R.D. 246 (D.D.C. 1981). See also Developments in the Law, Privileged Communications, 98 Harv.L. Rev. 1450, 1641 (1985). In Hearn v. Rhay, supra, the court applied a tri-part test to determine if the attorney-client privilege can be waived with respect to pleaded matters when defendants claimed they acted in good faith and without malice. The Hearn test includes three criteria for utilizing the placing-at-issue waiver: the privilege-holder must (1) assert the privilege through some affirmative act which puts the protected information at issue; (2) through this act the asserting party puts the information at issue and renders it relevant to the action; and (3) by applying the privilege the opposing party would be denied access to privileged matter that is vital to the opposing party’s defense. Hearn v. Rhay, supra, 68 F.R.D. at 581. Additionally, the court in United States v. Exxon Corporation, supra, used the Hearn test to hold that the oil company had waived its attorney-client privilege in an action to recoup overcharges in the sale of oil when Exxon raised the defense of good-faith reliance on the Department of Energy’s representations. In Exxon, as in the instant case, the purpose of the discovery was to determine facts which required delving into the subjective intent of the parties, and, as well, the attorney-client privilege was used as a shield to this discovery.
“ * * * Thus, the only way to assess the validity of Exxon’s affirmative defenses, voluntarily injected into this dispute, is to investigate attorney-client communications where Exxon’s interpretation of various DOE policies and directives was established and where Exxon expressed its intentions regarding compliance with those policies and directives. There is no other reasonable way for plaintiff to explore Exxon’s corporate state of mind, a consideration now central to this suit.” Exxon v. United States, supra, 94 F.R.D. at 249.
The situation in the case at bar is especially suited to the Hearn analysis because at the heart of the Hearn court’s decision was the manifest unfairness of permitting *295a party to both assert information through some affirmative act for his own benefit, and to deny his opponent access to the very evidence that might refute or allow defense of this information. Hearn v. Rhay, supra, 68 F.R.D. at 581. Similarly, the case at bar presents a scenario where such manifest injustice did occur from such a practice.
An application of this Hearn analysis does not necessarily open up a Pandora’s box of everything becoming unprivileged.
“The anticipatory waiver theory concerns itself solely with the decision, whether by plaintiff or defendant, to commit to a course of action that would require the disclosure of privileged material. A defendant who answers a complaint with a general denial has not committed himself to such a course, because he bears no initial burden of going forward with evidence. Pleading an affirmative defense, however, if the defense can be established only with privileged evidence, will waive the defendant’s privilege. The critical choice being exercised by the pleader is not whether to sue or defend, but whether to do so with privileged evidence. The decision to use privileged evidence should create a waiver of the evidence so disclosed and of any other evidence with regard to the same subject matter.” 98 Harv.L.Rev. at 1643.
Sinclair asserted through five separate defenses that it had no malice when it published the letter. Consequently, by asserting this view in its answer to the amended complaint rather than a general denial, under the Hearn analysis the attorney-client privilege was waived, and the material became discoverable.
Additionally, there is great injustice in permitting the defendants to collusively hide the information and in effect deprive a court of the information it needs to avoid improperly terminating the case by summary judgment. A litigant should be permitted to diligently pursue discovery for the court to have the necessary information to effectuate a valid summary-judgment disposition.
The rule of necessity should be utilized to develop and reveal the information through discovery needed for the initial review by a court in a summary judgment proceeding.
“The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).
Without this necessary information, the court is effectively presented with only one hand to examine, and the use of the privilege under this joint representation arrangement results in summary-judgment disposition becoming hardly more than a sham.
Unsettled by review of the comprehensive briefing and detailed record, and without defined opinion about what trial results might be, it is my conclusion that at least as now presented, this activated and anguished litigation should not have been concluded by summary judgment. Consequently, I dissent.
. To change the scenario and contemplate that the disillusioned author of a critical election-date attack in a labor conflict vote had been employer’s agent, or even an investigator re*293tained by the employer’s law firm, and who, after jumping ship, was led in employment-contract dispute to be represented by the Union’s lawyers — would even-handed justice still envelop a malice issue by insulation of privilege in favor of the Union, or would the happenings between the employee and his new-found lawyers be discoverable in the suit between the employer and the Union, whether founded in libel, slander or perhaps intentional interference with a contract?