McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 671 of 671 results

Chapter: 20.2
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, "Endo points out that courts have applied the common interest doctrine to protect communications between patent holders and exclusive licensees with respect to proceedings before the PTO because both entities share a common legal interest: the issuance and enforceability of the underlying patents. See, e.g., In re Regents of Univ. of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996) ('we conclude that the legal interest between Lilly and UC was substantially identical because of the potentially and ultimately exclusive nature of the Lilly -- UC license agreement. Both parties had the same interest in obtaining strong and enforceable patents.'). But that is simply not the case here, where Endo and Teikoku's common interest was keeping other drugs off the market, whether the justification was for commercial or public safety reasons."; "The aim of the Citizen Petition was not to seek or maintain approval of Lidoderm, but instead to convince the FDA to maintain higher standards and keep competing generics off the market until they met those higher standards. That is a common commercial interest of Endo and Teikoku. The fact that Endo was making a legal argument among others in its Petition (that the FDA should adhere to its own regulations for bioequivalence) does not turn Endo and Teikoku's joint commercial interest into a legal one."; "Where the relief Endo sought at the FDA was not to protect its legal interests in its ability to sell Lidoderm (or Teikoku's legal interests in protecting the strength of its patents covering Lidoderm), but simply to have the FDA adhere to its own regulations in order to keep other drugs off the market, defendants' interests were commercial.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 20.2
Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *9 (N.D. Cal. June 10, 2013)
("The common interest or joint defense privilege originally arose from situations where a single attorney acted on behalf of multiple clients and has been extended to the joint defense context, such as 'when the defendants are co-defendants in the same action or are defendants in separate actions sued by the same plaintiff.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal CA B 4/14

Chapter: 20.3
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "Equally interesting is that we are aware of no jurisdiction that has rejected the principle when called upon to recognize it. Many states apparently have not addressed the question in a published decision -- as in Illinois -- probably owing to the fact that discovery issues infrequently make their way to an appellate court. But as far as our research discloses, every court that has addressed it has recognized it in some form. To be sure, courts have disagreed on the scope of this common-interest exception: whether the parties must be perfectly aligned or just generally share a common litigation goal, whether it applies beyond current litigation to anticipated litigation, whether it applies beyond litigation to commercial interests generally, which communications are protected, and the like."; "But as far as our research and that of the parties discloses, none of those courts has refused to recognize the common-interest exception to the waiver rule. None of them has held that parties with a common interest to defeat an adversary in a case or potential case should not be allowed to pool information and communicate with each other without fear of waiving a privilege.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.3
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "A partial list of names include 'the joint-defense doctrine, joint-defense privilege, joint-prosecutorial privilege, allied-lawyer privilege, common-interest doctrine, common-interest exception, common-interest privilege, common-interest rule, common-defense doctrine, pooled-information privilege, common-purpose theory, community-of-interest doctrine, joint-client privilege, joint-client doctrine, common-interest exception to waiver, and shared-confidentiality privilege.'" Id.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.3
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("[T]he 'common interest doctrine' on which OneBeacon relies is recognized under Ohio law and is an exception to the waiver doctrine.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 20.3
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "Certain aspects of the common interest doctrine are subject to wide-ranging interpretations across the Country. However, this Court is bound to apply New Jersey privilege law in this case, and New Jersey law favors an extremely expansive view of the doctrine. Indeed, O'Boyle [O'Boyle, 218 N.J. at 198] has made clear that disclosure may occur prior to the commencement of litigation; may involve communications between counsel for one party and a representative of another party; that the shared interest need not be strictly legal but also may be commercial; and that the parties' shared interests need not be identical -- a 'common purpose' will suffice. Id. at 199. The burden to show the privilege has not been waived, and thus, that the doctrine applies, rests with the party resisting disclosure.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ

Chapter: 20.3
Case Name: Wachob Leasing Co., Inc. v. Gulfport Aviation Partners, LLC, Civ. A. No. 1:15CV237-HSO-RHW, 2016 U.S. Dist. LEXIS 78660 (S.D. Miss. June 16, 2016)
("[S]everal courts have found that the privilege [common interest doctrine] extends to co-plaintiffs.")

Case Date Jurisdiction State Cite Checked
2016-06-16 Federal MS

Chapter: 20.3
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
(holding that the indemnitor and indemintee in an asset purchase agreement did not have a common interest; "All fifty states and federal courts have recognized the extension of the attorney-client privilege to certain tripartite relationships under various monikers including, inter alia, the 'joint defense privilege,' the 'common interest privilege,' the 'common interest doctrine,' and the 'common defense rule.'")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NC
Comment:

key case


Chapter: 20.3
Case Name: Gelman v. W2 Limited, Civ. A. No. 14-6548, 2016 U.S. Dist. LEXIS 14787 (E.D. Pa. Feb. 5, 2016)
(analyzing the common interest doctrine's application to communications between the plaintiff suing a defendant for breach of contract and the defendant's "authorized agent" which signed the contract -- and who was pursuing a lawsuit against the same defendant in another court; ordering an in camera production of the common interest agreement; "[A]lthough the Pennsylvania Supreme Court has not explicitly adopted the common interest doctrine, I predict that it would.")

Case Date Jurisdiction State Cite Checked
2016-02-05 Federal PA

Chapter: 20.3
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "The common interest doctrine is applicable where two parties with separate counsel share information concerning a common legal cause, sometimes articulated as the 'joint defense privilege,' 'common interest privilege,' or 'community of interest privilege.'")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY

Chapter: 20.3
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *20 (W.D. Wash. Sept. 19, 2014)
("Courts have extended the rule to cover communications in joint meetings among clients and their respective attorneys outside criminal defense situations and where litigation has not yet been commenced.")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 20.3
Case Name: United States v. Suarez, Case No. 5:13 CR 420, 2014 U.S. Dist. LEXIS 63687 (N.D. Ohio May 8, 2014)
(analyzing the common interest doctrine; "Although the Sixth Circuit3 does not appear to have directly adopted the requirements of the common interest doctrine, other circuit courts have done so.")

Case Date Jurisdiction State Cite Checked
2014-05-08 Federal OH

Chapter: 20.3
Case Name: United States v. Suarez, Case No. 5:13 CR 420, 2014 U.S. Dist. LEXIS 63687 (N.D. Ohio May 8, 2014)
(analyzing the common interest doctrine; "This extension is sometimes referred to as the 'joint defense privilege,' the 'common interest privilege,' or the 'community of interest privilege.'")

Case Date Jurisdiction State Cite Checked
2014-05-08 Federal OH

Chapter: 20.3
Case Name: Baker v. PPG Industries, Inc., Civ. A. No. 12-C-229 H (W. Va. Cir. Sept. 4, 2013)
(finding that West Virginia would not adopt the common interest doctrine; "Only a handful of state and federal jurisdictions have affirmatively adopted the common interest doctrine. Those that have recognized it, have not applied it uniformly. 'An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.' Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)."; "The parties herein agree that, to date, the West Virginia Supreme Court of Appeals has not recognized or adopted the 'common interest doctrine,' joint defense privilege,' or any similarly monikered doctrine or privilege where the parties are represented by different legal counsel. Accordingly, a policy decision exists as to whether such a doctrine and/or privilege is to be recognized and adopted in this state. Moreover, if such were to be recognized and adopted, a hot-mess of details need to be ironed out; including, but not limited to: "(1) Is an express agreement necessary or will the courts be able to presume that communications are intended to be in furtherance of a joint defense based upon the parties' actions?"; "(2) Would the doctrine or privilege apply where litigation is not threatened or anticipated or will the 'palpable threat of litigation' at the time of the communications be required?"; "(3) Will the doctrine or privilege be limited to where the parties have common shared legal interests rather than only a common shared economic, financial or commercial interests?"; "(4) What would constitute 'waiver' and who could be found to have 'waived' the application of the doctrine or privilege as well as how and to what extend?")

Case Date Jurisdiction State Cite Checked
2013-09-04 Federal WV

Chapter: 20.3
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *7 n.2 (E.D. Wis. July 10, 2013)
("The 'common interest' doctrine and 'joint defense' doctrine are two titles for the same thing. For ease of reference the court will use 'joint defense' from this point forward.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 20.3
Case Name: Smedley v. Lambert, No. 3:12-0003, 2013 U.S. Dist. LEXIS 45460, st *4-5 (M.D. Tenn. Mar. 29, 2013)
("It [the common-interest privilege] extends the scope of the attorney-client privilege by providing an exception to the general rule that communications made in the presence of or shared with third parties are not protected by the attorney-client privilege. The common interest privilege has frequently been referred to as the 'joint defense privilege' because the privilege was originally and is now most commonly invoked in the context of a joint criminal defense. . . . Although originally applied in criminal cases, it has also been extended to civil proceedings.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal TN B 3/14

Chapter: 20.3
Case Name: Crosby v. Blue Cross Blue Shield of La., Civ. A. No. 08 0693 SECTION: "S" (4), 2012 U.S. Dist. LEXIS 159605, at *12 (E.D. La. Nov. 7, 2012)
("In the Fifth Circuit 'the two types of communications protected under the [common legal interest] are: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel.". . . '[I]t is questionable in the Fifth Circuit whether the common interest doctrine extends to plaintiffs.'. . . The Court has found no authority in this circuit which extends 'common legal interest' principles to plaintiffs.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal LA B 5/13

Chapter: 20.3
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *8-9 (W.D. Va. June 28, 2012)
("Virginia also has recognized that the 'common interest' doctrine extends the attorney-client privilege and work-product doctrine to communications between co-parties, other interested persons and their counsel. See Hicks v. Commonwealth, 439 S.E.2d 414, 416 (Va. Ct. App. 1994); In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990). 'Whether an action is civil or criminal, potential or actual, whether the commonly interested parties are plaintiffs or defendants, "persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims."' Hicks, 439 S.E.2d at 416 (quoting In re Grand Jury Subpoenas, 902 F.2d [224,] 249 [(4th Cir. 1990)]).")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA B 3/16
Comment:

key case


Chapter: 20.3
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *9-10 (W.D. Va. June 28, 2012)
("Common interest assertions involving government agencies, however, must be carefully scrutinized. See Hunton & Williams v. U.S. Dep't of Justice, 590 F.3d 272, 274 (4th Cir. 2010). 'For the doctrine to apply, an agency must show that it had agreed to help another party prevail on its legal claims at the time of the communications at issue because doing so was in the public interest.'")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA

Chapter: 20.3
Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *8 (Bankr. E.D. Va. May 11, 2012)
(analyzing the ramifications of a law firm jointly representing a company and two of its executives in a derivative case; noting that the company later declared bankruptcy, and that the bankruptcy trustee moved to compel the turnover of documents the law firm created during the joint representation; inexplicably confusing the joint defense/common interest doctrine and the joint representation situation; "The common interest privilege, also known as the joint defense privilege, is universally accepted."; "The Restatement (Third) of Law Governing Lawyers states the rule as follows: 'Unless the co-clients have agreed otherwise, a communication described in Subsection (1) [communication that otherwise qualifies as privileged] is not privileged as between the co-clients in a subsequent adverse proceeding between them.'")

Case Date Jurisdiction State Cite Checked
2012-05-11 Federal B 4/13

Chapter: 20.3
Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 275 (Va. Cir. Ct. 2002)
("The Court of Appeals for Virginia recognized the common interest doctrine in criminal trials in Hicks v. Commonwealth, 17 Va. App. 535, 439 S.E.2d 414, 10 Va. Law Rep. 789 (1994). In the dicta of that case, the court stated that the common interest doctrine is not limited to criminal cases: 'Whether an action is civil or criminal, potential or actual, whether the commonly interested parties are plaintiffs or defendants, "persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims."' 17 Va. App. at 537, 439 S.E.2d at 416 (quoting, In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129 902 F.2d 244, 249 (4th Cir. 1990)); see also Cluverius v. James McGraw, Inc., 44 Va. Cir. 426, 430 (Richmond 1998).")

Case Date Jurisdiction State Cite Checked
2002-01-01 State VA B 3/16
Comment:

key case


Chapter: 20.3
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 72 (E.D. Va. 1998)
("Regardless of its origin in the criminal context, the Fourth Circuit has extended the privilege to the civil arena, renamed it the 'common interest' privilege, and, as the renaming suggests, broadened it to include parties who share a common interest."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA

Chapter: 20.3
Case Name: Cluverius v. James McGraw, Inc., 44 Va. Cir. 426, 430 (Va. Cir. Ct. 1998)
("The court agrees with the defendants that the common interest doctrine is an exception to the waiver of the attorney-client privilege or work product doctrine. While the concept of a joint defense first arose in Virginia in the criminal context, (see Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822 (1871)), the Virginia Court of Appeals has spoken to the concept as well."; finding that three defendants involved in litigation could freely exchange information without waiving the privilege, but impliedly requiring that a party be participating in litigation before becoming entitled to rely on the common interest doctrine)

Case Date Jurisdiction State Cite Checked
1998-01-01 State VA B 3/16
Comment:

key case


Chapter: 20.3
Case Name: In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990)
(noting that what was called the "joint defense privilege" is "more properly identified as the 'common interest rule'" (citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)))

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 20.3
Case Name: Chahoon v. Commonwealth, 62 Va. (21 Gratt.) 822, 841-43 (1871)
(protecting confidentiality of oral communications between criminal co-defendants in the presence of their legal counsel)

Case Date Jurisdiction State Cite Checked
1871-01-01 State VA B 3/16
Comment:

key case


Chapter: 20.7
Case Name: In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018)
February 13, 2109 (PRIVILEGE POINTS)

"Courts Take Expansive View of the Common Interest Doctrine"

Under the common interest doctrine, separately represented clients can avoid the normal waiver implications of disclosing privileged communications to third parties. Unfortunately, some courts do not recognize the doctrine, and most courts take a very narrow view – requiring that the common interest participants be in or anticipate litigation.

But some courts take an expansive view. In In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018), the court held that two companies considering a merger could rely on the common interest doctrine to safely share privileged communications about patent litigation involving one of the participants. Interestingly, the court did not point to the work product doctrine – which clearly would have covered the "litigation summar[ies]" the merging companies shared, and which would have survived such disclosure to a friendly third party. One day later, the court in AgroFresh Inc. v. Essentiv LLC, Civ. A. No. 16-662-MN-SRF, 2018 U.S. Dist. LEXIS 213204 (D. Del. Dec. 11, 2018), similarly held that a patent licensor and an exclusive licensee shared a common interest. The adversary argued that a patent licensee's interest is not "truly identical" to a licensor's interest, because "the licensee is free from the obligation to pay royalties on sales of the product if the patent is invalidated." Id. at *14. The court relied on earlier decisions in explaining that "licensors and exclusive licensees of patent rights are understood to share an identical legal interest in obtaining strong and enforceable patents." Id.

Expansive cases like this frequently generate hope that other courts will expand the common interest doctrine to transactional settings. But few courts have moved in that direction.

Case Date Jurisdiction State Cite Checked
2018-12-10 Federal MA
Comment:

key case


Chapter: 20.7
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "Assuming without finding that Plaintiffs and Amazon share a common legal interest, Plaintiffs have made no showing that Aziz's communications with Amazon were 'made in formulating a common legal strategy [ ] and that the parties understood that the communication would be in furtherance of the shared legal interest.'. . . Rather, the circumstances of this case -- namely, that Aziz performed many 'investigations' as part of his job and Rubie's had a 'Department' dedicated to this kind of activity -- support the conclusion that Aziz's communications with Amazon were part and parcel of both Rubie's and Aziz's activities in protecting the integrity of the brand, rather than for the purpose of 'formulating a common legal strategy' with respect to any specific litigation. Accordingly, the common interest doctrine does not apply in these circumstances.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY

Chapter: 20.7
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
(analyzing the common interest doctrine's application to communications between defendant restaurant owners and its authorized purchasing entity, both of whom entered into an agreement with a non-party sucralose yellow-packeted sweetner, which plaintiff alleged violated its trademark; concluding that the parties had a common interest in the transaction, and could therefore withhold transaction-related documents from discovery; "Defendants' privilege log shows DineEquity and CSCS had identical legal interests in the communications at issue, which concerned their negotiation of license and indemnification agreements with Domino."; "Given that CSCS is DineEquity's sole authorized purchasing entity, these privilege log descriptions reflect a goal of understanding the legal effects of DineEquity and CSCS's negotiations with Domino with respect to trademark licenses and indemnification agreements."; "Plaintiffs argue that the descriptions could imply DineEquity and CSCS did not have identical interests and that any shared interests were business ones, rather than legal. However, Plaintiffs' arguments are largely premised on the unsupported assertion that DineEquity and CSCS were in negotiations with each other, rather than with Domino."; "[U]nlike Bank of America [Bank of America, N.A. v. Terra Nova Ins. Co. Ltd., 211 F. Supp. 2d 493, 497 (S.D.N.Y. 2002)], Defendants and CSCS were not on opposite sides of a business transaction, sharing only a goal that the transaction be 'legally appropriate.' As noted above, DineEquity and CSCS were together in negotiations with Domino, and as described, sought and received legal advice about the legal ramifications of aspects of that deal. Plaintiffs contend that these descriptions show Defendants and CSCS were working to 'effectuate their business goal of completing the sweetener transition.'. . . While these descriptions suggest that Defendants' and CSCS's ultimate goal was a business transition, they also make clear that the issues addressed in the communications were specific legal issues within the transition. These legal issues do not lose their legal characteristics merely because they arise in the context of a business transaction.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 20.7
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "This portion of the email is protected by the common interest privilege because Deutsche Bank and RCS share a common interest as trustee and servicer.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 20.7
Case Name: Monco v. Zoltek Corp., No. 17 C 6882, 2018 U.S. Dist. LEXIS 117940 (N.D. Ill. July 16, 2018)
(analyzing the common interest doctrine application and work product issues in a law firm's lawsuit to collect its fees from a former client; focusing on communications between defendant's founder and another company with whom the founder negotiated a transfer of the patent to the founder; "Here, there is plainly not the required shared legal interest in an ongoing enterprise. All we know from Zoltek Corporation is that one party -- Toray Industries [Other company] -- is transferring a patent to another party -- Mr. Rumy [Defendant's founder]. Zoltek Corporation tells us that Toray Industries is transferring that patent because it doesn't want to be involved in the ongoing litigation anymore. As such, Toray Industries does not share the required common legal interest with Mr. Rumy; quite the contrary: Toray Industries is abandoning a legal interest and transferring it to Mr. Rumy. Mr. Rumy says that he then would pursue the litigation in his 'individual capacity.'. . . By definition, that's not a 'joint venture,' regardless of Zoltek Corporation's tendentious attempt to describe it as such."; "Toray Industries is selling the patent and exiting the litigation; Mr. Rumy is buying the patent rights and taking over the litigation, as he says, in his 'individual capacity.' Toray and Zoltek Corporation are out of the case, and Mr. Rumy is in. Thus, it is a contradiction in terms to say that this evidences a 'common legal interest' as the cases use that term.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal IL

Chapter: 20.7
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "There must be 'an on-going and joint effort to set up a common defense strategy' for the common interest exception to apply. . . . '[A] shared desire to see the same outcome in a legal matter is insufficient to bring a communication between two parties within this exception.'. . . 'Instead, the parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement -- whether written or unwritten.'")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA
Comment:

key case


Chapter: 20.7
Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. Bankr. March 5, 2018)
(holding that the common interest doctrine did not protect communications between a Creditors Committee (represented by Hunton & Williams) and the bankrupt company, who settled with a Creditors Committee and then sued the defendant; "The Defendants argue that after the settlement with the Trustee, FTB's interest in the adversary proceeding is financial or commercial, not legal. FTB is not a party or potential party in the litigation and any ruling by the Court will have no legal repercussions on FTB. Instead, 'FTB has nothing more than a rooting interest in the outcome of the Trustee's case.'"; "That ruling is that FTB shares a financial interest in common with the Trustee. It does not share a common legal interest with the Trustee. The Court reaches its conclusion from case law and a common sense approach to the issue. The Court can certainly understand why the Trustee and H&W oppose the Motion. They do not want to produce the documents to the Defendants. But they are wrong."; "It remains clear to the Court that the common interest which the Trustee and FTB share is financial, not legal. FTB has no legal exposure to the Trustee or Defendants. Instead, FTB sits on the sidelines and hopes that the Trustee, with H&W's help, will achieve success, collect on a judgment, and pay FTB its share of the proceeds. Surely that is a financial interest, not a legal one."; "There is added texture and importance to Defendants' effort to obtain the 191 withheld documents. FTB was at one time the 'bad guy,' the target of the Trustee's and H&W's lawsuit. The complaint which H&W drafted named FTB as the sole defendant and the cause of Debtors' downfall. FTB was accused in the draft complaint of destroying Debtors' going concern value and causing in excess of $5 million of WARN Act liability. Defendants want to better understand what happened to flip the case from FTB to Defendants as being responsible for Debtors' misfortune. The withheld documents may or may not explain what happened, but the Defendants must know.")

Case Date Jurisdiction State Cite Checked
2018-03-05 Federal DE

Chapter: 20.7
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
("The common interest doctrine does not protect the five redactions at issue because Defendant Cultural Care, Inc., the holder of the attorney-client privilege, disclosed the privileged information to the Alliance, which does not have an identical legal interest. Defendants' argument, that '[w]ith respect to this litigation, the Alliance and Defendants have an identical interest -- to prevail,' an argument the Magistrate Judge adopted, is inaccurate. . . . For Defendants to 'prevail' in this action is for them to escape liability for the underpayment of au pairs under the FLSA or state minimum wage laws. The Alliance does not, and cannot have, that interest because the Alliance cannot be held liable for underpayments to au pairs. The Alliance is differently -- situated to Plaintiffs' claims than Defendants are, for the Alliance is not an employer of au pairs and did not pay au pairs. In short, the Alliance has no interest in escaping liability, unlike Defendants. . . . Defendants thus have failed to carry their burden to show an identical legal interest with the Alliance. The common-interest doctrine does not protect the attorney-client privileged information Defendant Cultural Care, Inc. divulged to third party the Alliance."; "The Magistrate Judge's conclusion that Defendants and the Alliance have an identical legal interest in 'retaining] the current method of stipends' is contrary to law. . . . That is not an identical legal interest; it is a business or commercial interest. . . . The Magistrate Judge also erred in stating that 'the Alliance could be named . . . an active aider and abettor' or 'a potential defendant' in this action. . . . As the Court has discussed at length, the Alliance cannot be named a defendant to Plaintiffs' claims because the Alliance is not responsible for paying au pairs.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 20.7
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
("A common commercial interest and a common desire for the same outcome in a legal matter are not sufficient to establish a common interest.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 20.7
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. No. 16-453-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
(holding that the work product doctrine did not protect communications to and from a litigation finance company and its lawyer Reed Smith, and that the litigant and its litigation funder did not share a common interest sufficient to avoid waiving privilege protection; apply the "AID" standard for work product protection; "Plaintiff argues that '[l]itigation funders provide funds 'for the sake of securing, advancing, or supplying legal representation,' and thus have a common legal interest with the plaintiffs they fund.'. . . Therefore, argues Plaintiff, because 'Hamilton Capital [was] [P]laintiff s litigation funder with a financial interest in [Plaintiff's] successful enforcement of the patents,' Plaintiff and Hamilton Capital had a common legal interest when the communications were exchanged. . . . Plaintiff also cites an unpublished Court of Chancery opinion, Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7 (Del. Ch. Feb. 24, 2015), for the proposition that 'there is a community of legal interest between a patent owner and its litigation funder.'. . . Carlyle is about work product privilege, not common interest attorney-client privilege. 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7."; "However, as explained by the Special Master, 'even accepting Plaintiff's representation' of the confidential relationship between Plaintiff's counsel and Hamilton Capital's counsel, 'it [does not] appear that there was any written agreement at [the time of the communications] to have a legally 'common interest' in whatever was provided by Plaintiff.'. . . Furthermore, the Special Master explained that the 'documents were provided before any agreement was reached between Plaintiff and Hamilton Capital, and before any litigation was filed.'. . . Thus, Plaintiff has not shown that Plaintiff and Hamilton Capital possessed identical legal interests in the patents-in suit or were otherwise 'allied in a common legal cause' at the time of the communications. . . . Because Plaintiff has not carried its burden of establishing a common legal interest, the privilege does not apply, and Plaintiff's objection falls short.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 20.7
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "Equally interesting is that we are aware of no jurisdiction that has rejected the principle when called upon to recognize it. Many states apparently have not addressed the question in a published decision -- as in Illinois -- probably owing to the fact that discovery issues infrequently make their way to an appellate court. But as far as our research discloses, every court that has addressed it has recognized it in some form. To be sure, courts have disagreed on the scope of this common-interest exception: whether the parties must be perfectly aligned or just generally share a common litigation goal, whether it applies beyond current litigation to anticipated litigation, whether it applies beyond litigation to commercial interests generally, which communications are protected, and the like."; "But as far as our research and that of the parties discloses, none of those courts has refused to recognize the common-interest exception to the waiver rule. None of them has held that parties with a common interest to defeat an adversary in a case or potential case should not be allowed to pool information and communicate with each other without fear of waiving a privilege.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.7
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; concluding that the company did not waive work product protection by sharing its work product with independent auditors; "ML's argument here is different from the argument it made for the materials provided to the SEC; it contends that even the actual physical production of work product to a company's auditors does not waive work-product protection because an independent or outside auditor typically shares a common interest with the corporation for purpose of the work product and waiver doctrines."; agreeing with Morgan Lewis; "In their motion, Defendants say that there is a 'split' on the legal consequences arising from disclosures to a corporation's accountants or auditors but then concede that 'the majority' of courts hold that auditing and accounting firms typically do share a common interest."; "The Undersigned is not persuaded by this effort to treat Deloitte differently from those cases that hold that an outside auditor has a common interest with the corporation for work-product waiver issues.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 20.7
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Proc. No. 08-01789 (SMB), Adv. Proc. No. 10-04292 (SMB), 2017 Bankr. LEXIS 3638 (S.D.N.Y. Oct. 17, 2017)
(in a case arising from Bernie Madoff's fraud, holding that drafts of Madoff's declaration deserved work product protection; "Chaitman [Lawyer for Madoff's sister-in-law's husband] suggests that Roman [Bernie Madoff's sister-in-law's husband] and Madoff share a common interest 'in their search for the truth.'. . . Given Roman's and Chaitman's other clients' contention that Madoff is a liar who defrauded them . . . the assertion is absurd.")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY

Chapter: 20.7
Case Name: Estate of Chance Aaron Nash v. City of Grand Haven, No. 336907, 2017 Mich. App. LEXIS 1545 (Mich. App. Oct. 10, 2017)
(holding that the City (which was not a party in the litigation) could assert a common interest agreement with a defendant employee; "In this case, even though the city was not named as a defendant in the underlying tort litigation, a primary issue in that litigation has been determining the ownership of Duncan Park and the nature of the city's relationship to Duncan Park."; "[T]he record supports the conclusion that the city shared with all of the defendants in the underlying tort action a common legal interest in matters related to the operation, use, maintenance, and protection of Duncan Park for the benefit of the people of Grand Haven and that the city and the tort defendants were involved in a joint effort to prevent or limit liability from attaching to the parties involved in the operation of Duncan Park.")

Case Date Jurisdiction State Cite Checked
2017-10-10 Federal MI
Comment:

key case


Chapter: 20.7
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
("Parties may have both common commercial and legal interests, such as when the parties are discussing a merger or negotiating for a patent license.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.7
Case Name: Violetta v. Steven Bros. Sports Mgmt., LLC, Case No. 16-1193-JTM-GEB, 2017 U.S. Dist. LEXIS 135861 (D. Kansas Aug. 24, 2017)
(finding that the common interest doctrine applied only if the participants were working on a common legal strategy, not if one participant merely provided facts to other participants; "The relevant question with which the Court reviews the communications is this: were Defendants and their third-party insurers communicating to formulate a common legal strategy, which would entitle the third-party communications to privilege? Upon review of the documents, it appears Ms. Waldon, on behalf of the insurance company, was simply providing information to Defendants regarding the identity of the administrator and plan documents, such as benefits summaries and plan booklets -- not working with her to craft a common legal strategy.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal KS
Comment:

key case


Chapter: 20.7
Case Name: Cejka v. Vectrus Sys. Corp., Civ. A. No. 15-cv-02418-MEH, 2017 U.S. Dist. LEXIS 117419 (D. Colo. July 27, 2017)
("Although Fluor was not actually named as a party to this case, the Court finds that these facts, known at the time Vectrus and Fluor were made aware of potential litigation by the Plaintiffs in June and July 2015, suffice to demonstrate a common interest between Vectrus and Fluor concerning their involvement in and preparation for such litigation. In other words, the Court concludes that the nature of the interests between Vectrus and Fluor starting in July 2015 regarding potential litigation by the Plaintiffs were identical, and the legal hold notice and communications between Vectrus' and Fluor's attorneys arising therefrom 'advance[d] the representation of the part[ies] and the attorney[s'] preparation of the case.'")

Case Date Jurisdiction State Cite Checked
2017-07-27 Federal CO

Chapter: 20.7
Case Name: Swyear v. Fare Foods Corp., Case No. 3:16-cv-01214-SMY-RJD, 2017 U.S. Dist. LEXIS 107939 (S.D. Ill. July 12, 2017)
(holding that a Title VII plaintiff forfeited privilege protection for communications with her lawyer, because she brought her mother with her to the meeting; claiming that the mother was not a joint client and did not share a common interest with the daughter; inexplicably not addressing possible work product protection; "[I]t appears that Swyear's mother was present during the initial consultation to provide emotional or moral support. While the Court is not unsympathetic to Swyear's position, the presence of her mother during the consultation waived the attorney client privilege. Courts have repeatedly noted that the scope of the attorney client privilege 'should be strictly confined within the narrowest possible limits,'. . . and the waiver exception for individuals assisting an attorney is inapplicable to this situation."; "Although Swyear's mother may have had prior business dealings with the Defendant, Swyear and her mother did not share a common legal interest. Swyear is pursuing a Title VII wrongful termination and sexual harassment lawsuit; there is no evidence that Swyear's mother sought legal services for such claims.")

Case Date Jurisdiction State Cite Checked
2017-07-12 Federal IL
Comment:

key case


Chapter: 20.7
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
(holding that Uber and its acquired company Ottomotto shared a common interest after they entered into the purchase agreement; "Sharing confidential information with a party one is required to indemnify is not inconsistent with the adversary system, provided the information concerns the subject matter of the indemnification right as it does here."; "Waymo insists that following the signing of the Put Call Agreement Otto, Levandowski and Ron still did not share a 'common interest.' Such an argument, however, is relevant to waiver of attorney-client privileged . . . to the extent any post Put Call Agreement log entries contain only attorney-client privileged information, and not also attorney work-product, the common interest doctrine applies. At the time Otto and Uber executed the Put Call Agreement, Otto, Uber, Levandowski, Ron and Otto Trucking executed the 'Joint Defense, Common Interest and Confidentiality Agreement.'. . . With the indemnification obligation, they all shared a joint common legal interest in defending claims brought by Waymo for misappropriation of trade secrets, among other things. As the Court previously found, until this indemnification obligation arose, and until Uber and Otto had exclusive options to make the acquisition happen, they did not share a common legal interest. . . . But once the indemnification obligation arose, they shared a common legal interest in defending claims brought by Waymo. Waymo's arguments to the contrary are not persuasive.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA

Chapter: 20.7
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Moreover, review of those documents themselves supports the Court's finding that they should be withheld from production since these documents are, in large part, transmittal correspondence between counsel for Wyoming and Napleton that makes clear the parties' joint effort to address the legal issues that Audi had raised with them. Very often, these documents are simply cover letters or emails that accompanied draft documents that the parties were sharing for comment, and which would subsequently be provided to Audi in substantially the same form. In other cases, the correspondence is some brief acknowledgment of communication received from Audi's counsel, and scheduling further discussions between the dealerships in order to prepare a concerted response that addresses the issues Audi was pressing. Although the Court recognizes that Audi may mine these limited pieces of correspondence for significance that might not be immediately apparent, the Court finds that the probative value of the correspondence itself is in large measure especially limited and thus this entire discovery dispute ultimately winds up being about withheld communications which often have very little apparent substance to them."; "Accordingly, following review of the parties' briefs and the documents submitted in camera, the Court agrees with Wyoming Valley's assertion that the common-interest privilege applies to each of the documents identified on Logs 1 and 3 because Wyoming Valley has effectively demonstrated that it shared with Napleton the kind of substantial parallel legal interests are necessary for the common-interest privilege to be applicable to this narrow set of documents, much of it correspondence between counsel. That the parties may have shared a commercial interest both in seeing this transaction through to closing, and in overcoming Audi's opposition to the deal, does not mean that the dealerships did not also have substantially similar legal interests vis a vis Audi, which was seeking to protect its alleged rights under its contract with Wyoming Valley."; "It is difficult to read Audi's correspondence in September 2016 as doing anything less than threatening formal legal action and making specific legal demands, which Wyoming Valley and Napleton had a shared interest in addressing. Although they may have previously been on opposite sides of an arms' length transaction, in the fall and winter of 2016, Wyoming Valley's and Napleton's interests converged more closely, and became increasingly intertwined such that Napleton has recently been permitted to intervene in this case to defend the transaction that Audi has attacked. Therefore although the parties may not have shared common legal interests prior to the fall of 2016, the Court finds that they did so after Audi's September 28, 2016 letter. That letter presented a common legal threat to the parties' common commercial interests. Confronted by this common legal threat, we believe that the parties now had a common legal interest in coordinating a response to this threatened litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.7
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "This discovery dispute presents a close question, and one that is made somewhat more difficult to resolve because although Pennsylvania law recognizes the common-interest privilege that Wyoming Valley has asserted, Pennsylvania courts have provided very limited guidance in terms of the privilege's application. . . . It is clear that purely commercial interests are insufficient to support the common-interest privilege, but it is also true that the privilege is not vitiated simply because parties share commercial interests, so long as they also share substantial legal interests."; "It is telling that Wyoming Valley does not claim a common-interest privilege over any document that existed or was exchanged before Audi and the other manufacturers sent letters outlining their concerns and specific demands, as this presents a clear moment where the parties recognized that they shared a legal interest in addressing Audi's challenge."; "Although it is a close issue, we find that Wyoming Valley and Napleton had sufficiently shared legal and commercial interests in coordinating the responses to Audi to shield the documents on Logs 1 and 3 from disclosure pursuant to the common-interest privilege. The Court's conclusion might have been different if Wyoming Valley and Napleton were seeking to shroud in secrecy documents relating to their negotiations or contractual back-and-forth relating to the Purchase Agreement itself. The fact that they restricted their assertion of the privilege to specific communications occurring after late September 2016, when the manufacturers put them on notice regarding potential legal challenges to the transaction, supports a finding that the common-interest privilege was appropriately invoked for this narrow set of documents.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.7
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Upon consideration of the form and tone of this correspondence, the Court agrees that the manufacturers' challenges to the Purchase Agreement, which explicitly referred to alleged violations of law and material breaches of contracts, made litigation reasonably foreseeable, and inspired a change in the relationship between Wyoming Valley and Napleton, which now began exchanging correspondence with one another through their respective counsel not only to negotiate the transaction, but to address the manufacturers' concerns and thinly veiled threats of legal action."; "'Counsel may have continued to negotiate the transaction on behalf of their clients, but the documents submitted for in camera review reflect counsel working together to formulate legal responses to Audi's challenge to the deal.'"; "Although Wyoming Valley and Napleton were previously parties to an arms' length transaction to which they could, in some respects, be considered adverse to one another, after Audi sent a letter challenging the contract that they had negotiated, these parties had a shared legal as well as commercial interest in defending against Audi's efforts to disrupt the deal. Audi's letter plainly threatened legal challenge to the transaction, and identified its own legal interests that it claimed were infringed. The Court finds that Audi's direct challenge to the transaction also gave rise to a common legal interest shared by the dealerships in responding to Audi's threats.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.7
Case Name: Immunex Corp. v. Sandoz Inc., Civ. A. No. 16-1118 (CCC), 2017 U.S. Dist. LEXIS 87262 (D.N.J. June 7, 2017)
("Many aspects of the common-interest doctrine are subject to debate across the Country, including the degree of legal interest the parties must share. See Katharine Traylor Schaffizn, An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix It, 15 B.U. Pub. Int. L.J. 49 (2005). Must the parties have identical interests? Substantially similar? Can the parties even be adverse in some respects? Can it be commercial or must it be legal? To be blunt, non-binding case law to support any view on any subject in this area can be found. . . . In the absence of controlling authority, this Court requires that the parties share a substantially similar legal interest in the shared communication."; "Whether a given communication has (a) an underlying privilege, and (b) was made in furtherance of a shared legal interest is usually a document-by-document consideration, which is undertaken in an abbreviated fashion below. However, as a general matter, the Court is satisfied that, if a given communication is privileged, and assuming it was made in furtherance of the licensing agreement and/or prosecution, scope, and validity of the Roche Patents, the common interest doctrine would apply to protect it.")

Case Date Jurisdiction State Cite Checked
2017-06-07 Federal NJ
Comment:

key case


Chapter: 20.7
Case Name: AP Atlantic, Inc. v. Crescent Univ. City Venture, LLC, 15 CVS 14745 (Master File), 16 CVS 14844 (Related Case), 2017 NCBC LEXIS 49 (N.C. Super. June 6, 2017)
(finding that the common interest agreement did not apply to communications between a property owner and a contractor; "To extend the attorney-client privilege between or among the attorney, the attorney's client, and a third party, the client and third party must '(1) share a common [legal] interest; (2) agree to exchange information for the purpose of facilitating legal representation of the parties; and (3) the information must otherwise be confidential.'. . . In such circumstances, the privilege 'serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.'"; "[B]ut only if the parties have a common interest about a legal matter -- not a common business interest 'that may be impacted by litigation involving one of the parties,' id. (quoting SCR-Tech LLC v. Evonik Energy Servs. LLC, 2013 NCBC LEXIS 38, at *16 (N.C. Super. Ct. Aug. 13, 2013)) (holding that the defendants and a third-party 'shared a common business interest as opposed to the common legal interest' where the third-party was not a party to the litigation and the litigation was not materially related to the defendants' transaction with the third-party allegedly giving rise to the common legal interest)."; "In addition, Crescent has not shown an existing common legal interest between Crescent, the owner of the property at issue, and Summit, the contractor Crescent hired to repair trusses at the property, sufficient to invoke the common interest doctrine. Although Crescent bases the alleged common legal interest here on 'the indemnity and assumption of defense obligations' that Crescent and Summit 'reasonably anticipated would fall to Crescent,' Crescent has not argued that such obligations actually fell to Crescent, and it is undisputed that Summit never received a demand relating to its repairs and is not a party to this litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-06 State NC

Chapter: 20.7
Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
(holding that defendant Tropicana waived its privilege protection but not its work product protection by sharing due diligence material in an ongoing litigation to its ultimate acquirer; noting that plaintiff RKF sued Tropicana in 2014, and that Penn Gaming acquired Tropicana in 2015; creating a privilege waiver; "Courts are somewhat divided on whether the disclosure of confidential attorney-client communications to a prospective purchaser or investor is protected from a finding of waiver by the common interest doctrine. A majority of courts have rejected application of the doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort. . . . Nidec [Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575 (N.D. Cal. 2007)] notes that even if the parties to the disclosure have a common legal interest, the communication at issue must be designed to further that common legal effort. It must be made in the course of formulating a common legal strategy."; "A majority of federal courts have not adopted Hewlett-Packard's [Hewlett-Packard v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D.Cal. 1987)] expansive application of the common interest doctrine to protect disclosures made primarily for business purposes. There is no indication that the Nevada Supreme Court would interpret NRS § 49.095.3 to protect from waiver disclosures made primarily for business purposes. This Court therefore declines to interpret NRS § 49.095.3 in a manner that is not called for by the statutory language itself, and which is contrary to the majority view regarding the scope of the common interest doctrine."; "Tropicana has shown only that representatives and lawyers for Tropicana and Penn Gaming discussed this litigation. This, however, indicates nothing more than that Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition. Tropicana has failed to show that its pre-merger communications with Penn Gaming are protected from disclosure by the attorney-client privilege. RKF's motion to compel will therefore be granted as to those pre-merger documents to which only the attorney-client privilege and common interest doctrine are asserted.")

Case Date Jurisdiction State Cite Checked
2017-05-25 Federal NV

Chapter: 20.7
Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
August 2, 2017 (PRIVILEGE POINT)

"Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer"

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or communications protected by the attorney-client privilege, the work product doctrine, or both.

In RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017), plaintiff RKF sued Tropicana in 2014, alleging that Tropicana wrongfully terminated an exclusive agency contract. In 2015, Penn Gambling acquired Tropicana. RKF then sought discovery of "information about [its] lawsuits" that Tropicana disclosed to Penn Gaming before the acquisition. Id. at *5. The court found that Tropicana's due diligence disclosures waived privilege protection but not work product protection. In finding a privilege waiver, the court rejected Tropicana's argument that it shared a "common interest" with acquirer Penn Gaming -- noting that the "majority of courts have rejected application of the [common interest] doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort." Id. at *10. The court concluded that "Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition." Id. at *14. In contrast, the court found that Tropicana did not waive its work product protection by disclosing work product to Penn Gaming during the due diligence process. The court correctly noted that unlike the fragile privilege protection, work product protection "is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary." Id. at *17. The court concluded that Penn Gaming had a vital interest in preserving as confidential Tropicana's disclosure about RKF's suit because Penn Gaming "would, directly or indirectly, assume Tropicana's potential liability if the merger went through." Id. at *18.

Other courts have reached the identical two-part conclusion in addressing pre-acquisition due diligence disclosures – which dramatically highlights the contrast between the fragile privilege protection and the robust work product protection.

Case Date Jurisdiction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 20.7
Case Name: In re Hypnotic Taxi LLC v. Bombshell Taxi LLC, Ch. 7 Case No. 15-43300 (CEC), Adv. Pro. No. 15-01185 (CEC), 2017 Bankr. LEXIS 995 (E.D.N.Y. April 10, 2017)
(holding that the settlor of a trusts had given away all ownership of the trusts, and therefore did not have a common interest with the trusts, even though the settlor wanted to protect trust assets for his children and the parents; "In order to invoke the common interest doctrine, the interest shared by the parties, among whom the privileged information passed, must be legal; the mere existence of a common business strategy or shared commercial interest, even if combined with the anticipation of or concern about litigation, is not enough to invoke the doctrine. . . . Such a legal interest must also be identical, not merely similar. . . . Furthermore, the shared desire to succeed in a legal action does not meet the requirement of the doctrine."; "For example, courts have found a common legal interest sufficient to invoke the common interest doctrine between an agent for a syndicated loan group and the members of the group, in an action against the borrower brought by the agent on behalf of the lending group . . . and between an assignor and assignee of trademark rights, in an action involving a challenge to the assignee's right to use the trademark and a challenge to the validity of the assignment agreement, where the non-party assignor had a contractual duty to indemnify the assignee."; "On the other hand, an asserted common legal interest was found insufficient to invoke the common interest doctrine between two wholly owned subsidiaries of a common parent, even where one subsidiary had financed the plaintiff's purchase of an aircraft from the other, and the finance and purchase agreements contained cross-defaults."; "[T]he Trusts assert that the common legal interest they share with Freidman is 'the protection of the assets validly vested in the Non-Party Trusts for the benefit of Freidman's heirs and/or parents.'. . . However, the Trusts have not identified any legal interest Freidman has in protecting the property they hold. Although Freidman is the settlor of the Trusts, and transferred his interests in the Real Estate Entities to the Trusts, no showing has been made that Freidman retains any interest in the Trusts or in Trust property. . . . It has not been shown that Freidman is a beneficiary of the Trusts, a trustee of the Trusts, holds a remainder interest in any property held by the Trusts, possesses the power to revoke or amend the Trusts, or retains any interest whatsoever in the property conveyed to the Trusts. Indeed, the evidentiary record shows the contrary: by letters dated March 1, 2016, offered in evidence by Citibank at the hearing as Exhibit HH, Freidman resigned as protector of the Trusts, and was removed as a discretionary beneficiary of the Trusts."; "As there has not been a showing that Freidman holds a legal or beneficial interest in the property of the Trusts, it appears that Freidman shares only a personal or business interest with the Trusts, i.e. the desire for 'the protection of the assets [held by the] Trusts for the benefit of Freidman's heirs and/or parents.'")

Case Date Jurisdiction State Cite Checked
2017-04-10 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
(addressing the waiver implications of a witness reporting to the government that other witnesses committed perjury three years earlier; holding that the witness did not have a common interest with the government, but that the government did not waive its work product protection when disclosing work product to the witness; "As this recitation of objectives makes clear, the Government and Dr. George ["an environmental consultant who worked for Defendants"] each had distinct objectives when they exchanged information relevant to this suit."; "In light of these distinct objectives, the Court concludes the Government and Dr. George lacked a common interest sufficient to support application of the common-interest doctrine. The mere fact that Dr. George and the Government may have shared an interest 'in working to uncover the truth of the matter' does not mean that they shared a common interest sufficient to extend the bounds of attorney-client or work-product privilege. For the common-interest doctrine to apply, represented parties must share a corresponding interest, not merely the need 'for a full and accurate understanding of the facts surrounding various incidents.'. . . The Government has not asserted, nor can the Court conceive of, any interest it has that might correspond to an interest of Dr. George. Therefore, the Court rejects the Government's assertion that the communications between Dr. George and the Filter Team are privileged under the common-interest doctrine.")

Case Date Jurisdiction State Cite Checked
2017-03-27 Federal IA

Chapter: 20.7
Case Name: Behunin v. The Superior Court of L.A. County, B272225, 2017 Cal. App. 227 (Cal. App. March 14, 2017)
(finding that the privilege did not protect communications to and from an outside PR agency hired by plaintiff's lawyer; "The common interest doctrine applies where the individuals involved in a communication have common interests such that disclosures between them are reasonably necessary to accomplish the purposes for which they are consulting counsel."; "Behunin [Plaintiff] and Levick [Public relations agency]do not have a common interest "'in securing legal advice related to the same [shared] matter.'. . . There is no evidence, however, that Levick sought legal advice from Steiner or that there was an attorney-client relationship between Steiner and Levick. To the contrary, Behunin stated in his declaration that Steiner hired Levick on behalf of Behunin without knowing anything about the content of the website Levick was to create. Although Levick, as a paid consultant, may have wanted its public relations campaign to succeed, that is not the kind of common interest contemplated by sections 912 and 952.")

Case Date Jurisdiction State Cite Checked
2017-03-14 Federal CA

Chapter: 20.7
Case Name: United States v. Napout, 15 CR 252 (S-1) (PKC) (RML), 2017 U.S. Dist. LEXIS 34759 (E.D.N.Y. March 10, 2017)
(finding the common interest doctrine inapplicable; "Turning to the instant case, defendant has cited no case law, nor has the court's research uncovered any, recognizing a valid common interest agreement under circumstances similar to those here. With respect to the parties' interests, it is difficult to reconcile Napout's interest as a target of the government's investigation with CONMEBOL's opposing interest purported victim of the crimes alleged in the indictment. That the parties apparently did not recognize this distinction during the relevant time period does not alter the analysis."; "Furthermore, the extensive testimony at the hearing clearly establishes that the purpose of the agreement was to allow Napout to 'run everything by' his defense attorneys in an effort to shield himself from criminal liability from the government's ongoing investigation. As Pappalardo made clear at the hearing, he and Kendall entered into the common interest agreement because he 'did not want [Napout] in his official capacity as president of CONMEBOL to further implicate himself.'. . . However, defendant has offered no persuasive evidence that this arrangement furthered any cognizable legal interest of CONMEBOL. Rather, the record before me describes an arrangement whereby information would flow in only one direction -- from CONMEBOL to Napout -- and only for Napout's benefit. It is significant that Napout, acting in his individual capacity, apparently authorized both parties to enter into the common interest agreement and, as a former manager, now seeks to constrain the entity's exercise of control over corporate communications. See Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 349, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985) ('Displaced managers may not assert the privilege over the wishes of current managers, even as to statements that the former might have made to counsel concerning matters within the scope of their corporate duties.') In sum, I know of no precedent or principle supporting defendant's argument.")

Case Date Jurisdiction State Cite Checked
2017-03-10 Federal NY

Chapter: 20.7
Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
(holding that an inventor and a patent licensee had a common interest when negotiating the license, even during that otherwise adversarial negotiation; "The Regents [In re Regents of the Univ. of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996)] court . . . held that communications between a potential licensee and an inventor/patentee were privileged under the common-interest doctrine because 'both parties had the same interest in obtaining strong and enforceable patents.'. . . It did not matter that one party had not retained the other party's attorney: 'the issue is not who employed the attorney, but whether the attorney was acting in a professional relationship to the person asserting the privilege.' The court concluded that 'the legal interest [between the potential licensee and the inventor/patentee] was substantially identical because of the potentially and ultimately exclusive nature' of the license agreement: 'Valid and enforceable patents" on the inventions 'are in the interest of both parties.'"; "It is clear . . . that communications between parties concerning the strength and enforceability of patents as they are negotiating exclusive license agreements are protected under the common-interest doctrine."; "The fact that the parties periodically disagreed concerning the division of rights between them does not mean that they did not have a common interest in the patents in question. A review of the 34 disputed communications in this category that are listed in RO's memorandum, #278-1 at 14, demonstrates that, despite CEO Martin's periodic complaints concerning Crane's perceived over-reaching, NV and Crane, with input from attorneys and executives from both sides and the inventor, were in fact seeking and receiving confidential legal assistance from one another in prosecuting the patents that concerned Crane."; "[T]he parties had a common legal interest that is widely recognized in the law, namely, the interest that potential licensees and patent owners have in successfully prosecuting patent applications as established in Regents."; "RO cites In re JP Morgan Chase & Co. Securities Litigation, 2007 U.S. Dist. LEXIS 60095, 2007 WL 2363311, at *5 (N.D. Ill. Aug. 13, 2007) for the proposition that companies that are negotiating a merger cannot have a common interest because their interests are in conflict. . . . JP Morgan is not a patent case. Here, as long as the communications between buyer and seller concern the strength and enforceability of the patents, they are primarily for a legal purpose and are protected under the common-interest doctrine.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA
Comment:

key case


Chapter: 20.7
Case Name: Supreme Forest Prods., Inc. v. Kennedy, No. 3:16-cv-0054 (JAM), 2017 U.S. Dist. LEXIS 4421 (D. Conn. Jan. 12, 2017)
(holding that the privilege protected communications between two former company employees who had filed separate lawsuits against the same employer, using the same lawyer; finding it unnecessary for them to do an identical interest because they were jointly represented by the same lawyer rather than creating a common interest agreement; finding that the privilege did not protect the two clients' employee without the lawyer present; "[T]he attorney-client privilege may properly extend to communications that occur between an attorney in the presence of two or more clients that the attorney jointly represents."; "Here, it is clear to me that Kennedy and Welch share a common interest based on their highly similar employment claims brought against the same employer. They are for all practical purposes jointly represented by one attorney, and the fact that their attorney filed separate lawsuits rather than joining his two clients together in a single lawsuit does not dispel the application of the co-client privilege. If the clients share a common interest, the co-client rule requires joint representation, not necessarily joint litigation."; "This 'community of interest' privilege, however, differs from the co-client privilege. . . . For the co-client privilege, it suffices for the clients to have a common interest, not necessarily interests that are identical in all respects. So long as their interests are common, co-clients who consult the same lawyer would reasonably expect that their communications with the lawyer to which they are mutually privy would be protected from disclosure to third parties by the attorney-client privilege. The legitimate expectation of privilege is unmistakably higher in the co-client context than the broader community-of-interest context involving parties who are not represented by the same counsel."; "In any event, Kennedy and Welch had nearly identical legal interests. They both sought legal representation to pursue what was essentially the same major claim -- that Supreme Forest Products had violated federal law by retaliating against them when they resisted driving overweight vehicles. There were, of course, minor factual differences between their claims, but the gravamen of their complaint --Supreme Forest's alleged insistence on driving illegally loaded vehicles, and its alleged willingness to retaliate against drivers who didn't toe the line -- was the same. Although Welch had an additional claim related to his post-termination health benefits, the fact that Welch had an additional interest in his suit does not vitiate his common interest with Kennedy. I therefore find that defendants' interests were sufficiently common for them to properly invoke the co-client attorney-client privilege."; "Plaintiffs further contend that there is no evidence that Kennedy and Welch had a joint representation agreement with their counsel prior to when they were sued by plaintiffs in January 2016. But this argument ignores the course of dealing between defendants prior to January 2016 when they had both retained counsel within days of each other in May 2014 to represent them for purposes of the claims they eventually filed against Supreme Forest Products, Inc. Even if prior to January 2016 Kennedy and Welch did not have a formal written agreement of joint representation, it is clear to me that they would have justifiably expected their co-client communications with counsel to be protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2017-01-12 Federal CT
Comment:

key case


Chapter: 20.7
Case Name: Citibank, N.A. v. Bombshell Taxi LLC (In re Hypnotic Taxi LLC), 566 B.R. 305 (Bankr. E.D.N.Y. 2017)
June 14, 2017 (PRIVILEGE POINT)

"What Type of 'Common Interest' Satisfies the Common Interest Doctrine?'"

Some lawyers incorrectly assume they can contractually assure that disclosing privileged communications to third parties does not waive the privilege – by entering into a "common interest" agreement. But nearly every month some courts reject the effectiveness of such agreements, by which time the participants will already have waived their privilege protection.

In Citibank, N.A. v. Bombshell Taxi LLC (In re Hypnotic Taxi LLC), 566 B.R. 305 (Bankr. E.D.N.Y. 2017), a settlor of several trusts claimed that he shared a common interest with the trusts in resisting defendant's efforts to enforce a judgment against him. But the court rejected his common interest assertion. The court acknowledged decisions upholding common interest agreements' effectiveness in the contexts of "an agent for a syndicated loan group and the members of the group," and "an assignor and assignee of trademark rights." Id. at 315. But because the settlor had transferred all of the pertinent assets to the trusts without retaining any interest in them, the court found that he lacked a common interest with the trusts. Instead, the settlor "shares only a personal or business interest with the Trusts, i.e. the desire for 'the protection of the assets [held by the] Trusts for the benefit of [the settlor's] heirs and/or parents.'" Id. at 317 (first alteration in original) (internal citation omitted). In other words, his desire to protect his children's and his parent's assets was not a sufficiently common legal interest to avoid waiving the privilege when he disclosed privileged communications to the trusts.

Lawyers must always remember the difficulty of successfully relying on common interest agreements.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Obeid v. La Mack, 14 Civ. 6498 (LTS) (HBP), 2016 U.S. Dist. LEXIS 170826 (S.D.N.Y. Dec. 9, 2016)
(holding that an investor in plaintiff's real estate project was outside privilege protection, and could not be a common interest participant; in contrast, holding that disclosing work product to the investor did not waive that protection; "[T]here is no attorney-client relationship between plaintiff and Schmidt. Plaintiff describes Schmidt as the 'largest individual equity investor in the Miami Project'. . . and there is no contention that Schmidt is a lawyer, litigation consultant or agent of plaintiff's lawyers. Thus, the Disputed Documents cannot be privileged as a communication between a client and an attorney."; "The common interest rule does not apply here. First, it is debatable whether plaintiff and Schmidt share a common legal interest. Although plaintiff and Schmidt undoubtedly share an interest in recovering from the Individual Defendants for their alleged misconduct, it is not clear whether plaintiff and Schmidt had formed a coordinated legal strategy."; "More importantly, it does not seem plaintiff's communications with Schmidt were for the purpose of developing a common legal strategy. Although plaintiff claims to have sought 'Schmidt's opinion of and, in some cases, personal involvement in,' litigation strategy . . . , he sought it because Schmidt is an 'investor with an interest in seeing that the case is successful'. . . Moreover, plaintiff admits that his precise reason in generating the Disputed Documents was because the litigation materially affects Schmidt's financial interests."; "In determining whether communications were made in the course of formulating a common legal strategy, courts have examined whether attorneys were active in such communications. . . . Neither plaintiff's attorneys nor Schmidt's attorney was active in plaintiff's communications with Schmidt."; "Thus, given the absence of the direct involvement of attorneys here, it is impossible to conclude that a common legal strategy was being formulated."; "Therefore, the common interest rule is inapplicable and plaintiff has waived the attorney-client privilege by disclosing communications with his attorney to Schmidt.")

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY

Chapter: 20.7
Case Name: Kagan v. Minkowitz, 500940/2016, 2016 N.Y. Misc. LEXIS 4577, 2016 NY Slip Op 32429(U) (N.Y. Dec. 9, 2016)
(finding that plaintiff's brother was outside privilege protection, and did not share a common interest with the plaintiff; in contrast, finding that disclosure to the brother did not waive work product protection; "[T]he common-interest privilege does not apply to the facts of this case since there is no indication that Gam [Plaintiff's brother and funder of the litigation] has a 'legal interest' in common with Kagan because there is no pending or anticipated litigation against Gam.")

Case Date Jurisdiction State Cite Checked
2016-12-09 State NY

Chapter: 20.7
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
("'The Fifth Circuit has not addressed whether the CLI privilege is inapplicable to co-plaintiffs and specifically declined to examine whether the CLI privilege could apply to communications between potential co-plaintiffs.'")

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX

Chapter: 20.7
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
(holding that plaintiff had waived privilege protection for a legal opinion by turning it over to McCormick, which insisted on receiving the opinion before purchasing the plaintiff; rejecting plaintiff's argument that it and McCormick shared a common interest, because the court found there was no palpable threat of litigation; "As there was no actual litigation when Plaintiff disclosed the Opinion Exhibits to McCormick, the first type of communication protected by CLI privilege does not apply here. The question is then whether the Opinion Exhibits fall in the second category of communications: are the Opinion Exhibits communications between potential co-defendants made in light of a palpable threat of litigation? After examining the evidence provided by both parties concerning relations between SARC and Plaintiff in the period surrounding the disclosure of the Opinion Exhibits to McCormick, the Court finds no palpable threat of litigation."; "Although Plaintiff claims Defendants threatened litigation, Plaintiff provides limited evidence of such a threat. Plaintiff relies on a claim by its attorney that an unspecified executive from Plaintiff commented 'a SARC executive or executives were upset about the turn of events and threatened [Plaintiff] with some sort of legal action.' Such an allegation is insufficient to establish a palpable threat of litigation. . . . Plaintiff also selectively quotes the August 2011 email SARC manager Jeff Waughtal sent to Plaintiff's then-CEO Matt Gase, attempting to paint relations between SARC and Plaintiff as acrimonious. . . . But review of the entire email reveals SARC was hoping to work out the brand issues with Plaintiff and at worst wanted to 'let sleeping dogs lie and keep doing what we are doing.'"; "Rather than sharing the Opinion Exhibits with McCormick to prepare for litigation, Plaintiff shared the Opinion Exhibits with McCormick as a condition of the sale of Plaintiff's stock. . . . Such a communication more closely aligns with a common business undertaking than preparation for litigation and is therefore not protected by the CLI [] privilege.")

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX
Comment:

key case


Chapter: 20.7
Case Name: Au New Haven, LLC v. YKK Corp., No. 15-CV-03411 (GHW)(SN), 2016 U.S. Dist. LEXIS 160602, at *20 (S.D.N.Y. Nov. 18, 2016)
January 18, 2017 (PRIVILEGE POINT)

"Southern District of New York Issues a Troublesome Corporate Privilege Case"

Most courts applying privilege principles automatically treat wholly-owned subsidiaries' employees as if they were the parent's employees. However, occasionally courts take a narrower view.

In Au New Haven, LLC v. YKK Corp., Judge Netburn rejected defendants' argument that "entities under common ownership sharing privileged information are always considered to be a single entity for the purpose of attorney-client privilege" protection. No. 15-CV-03411 (GHW)(SN), 2016 U.S. Dist. LEXIS 160602, at *20 (S.D.N.Y. Nov. 18, 2016). Instead, the court surprisingly held that "[e]ntities that are under common ownership must still demonstrate that [the common interest doctrine] applies, such as by making a showing that a common attorney was representing both corporate entities or that they otherwise shared a common legal interest." Id. at *10. The court ultimately found the privilege applicable.

Although almost by definition a wholly-owned subsidiary's legal interest must align with its parent's legal interest, it is unsettling that a prestigious court would apply the common interest doctrine in such a setting.

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "Although reasonable minds may differ, based on the facts of the instant case, the Court finds that Symbol and the SEC shared a common interest in ensuring that the terms of the consent judgment were adhered to and that Symbol's accounting practices, notwithstanding the third quarter revenue overstatement, were sound. This common interest -- which squarely aligns with the SEC's mandate of ensuring compliance with the nation's securities laws -- therefore overshadows any possible adversarial relationship that could be deemed to exist based upon the SEC's pending informal inquiry at the time. See id. (finding that despite the ongoing inquiry by the SEC into defendant's accounting practices, disclosure of privileged materials to the SEC did not waive work product privilege where defendant and SEC shared a common interest in ensuring that defendant's 'financial and accounting practices [were] 'clean as a hounds tooth."; "Having determined that the relationship between Symbol and the SEC was predominantly non-adversarial, the Court turns to whether the disclosure nevertheless "'substantially' or 'materially' increase[d] the likelihood that an adversary w[ould] obtain the information.' Bank of America, N.A., 212 F.R.D. at 170. As stated above, in the wake of Steinhardt [In re Steinhardt Partners, L.P., 9 F.3d at 236], 'district courts within the Second Circuit [ ] give the existence of confidentiality agreements weighty consideration in rendering selective waiver decisions."; "In the instant case, the record establishes that on November 19, 2002, Symbol entered into a confidentiality agreement with both the SEC and U.S. Attorney's Office whereby Symbol agreed to produce certain confidential documents with the understanding that Symbol did 'not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "Further, although Plaintiff makes a perfunctory waiver argument with respect to any disclosures made to the Independent Examiner, the Court finds Plaintiff's position unavailing."; "Based upon the evidence in the record, and in the absence of any briefing by the parties, the Court finds that although labeled as 'independent,' the examiner was, for all practical purposes, acting as an agent for the government with the primary purpose of ensuring that Symbol complied with the terms and conditions of the deferred prosecution agreement as well as the Final Consent Judgment.")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("The Court further notes that, in light of the the indemnification provisions of the APA, Defendants' communications with each other regarding claims in this litigation would fall under the joint defense privilege.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 20.7
Case Name: Jiang v. Porter, Case No. 4:15-CV-1008 (CEJ), 2016 U.S. Dist. LEXIS 82939 (E.D. Mo. June 27, 2016)
(apparently holding that the common interest doctrine only applied if every participant was a party or anticipated party to litigation; "Here, defendants have not demonstrated that the parties to the communication at issue have an identical legal interest made in the course of formulating a common legal strategy. The circuit attorney has never been a party in this case, nor has she been an attorney for any party in this case. Thus, there is no merit to defendants' suggestion that she shared a common interest with David Clohessy in defending against plaintiff's claims in this matter.")

Case Date Jurisdiction State Cite Checked
2016-06-27 Federal MO

Chapter: 20.7
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
(holding that the indemnitor and indemintee in an asset purchase agreement did not have a common interest; "While not binding, decisions by several federal courts and the North Carolina Business Court provide some clarity as to what constitutes a common legal interest, distinguishing it in particular from a common business interest. 'For the privilege to apply, the proponent must establish that the parties had some common interest about a legal matter.'"; "[T]he primary purpose of an insurance contract is defense and indemnification. By contrast, an indemnification provision in an asset purchase agreement is generally ancillary to the sale of a business, and Defendants have presented no evidence that their agreement with Blast [Third party] was otherwise. . . . The indemnification provision in the asset purchase agreement requires Blast to defend and indemnify Defendants from '[l]osses incurred or sustained . . . on account of or relating to . . . the use of the [a]ssets by [p]urchaser and the operation of the . . . [h]ealth [c]lubs . . . .' This language, and the nature of the asset purchase agreement, are most similar to the purchase agreement which was held to be insufficient in SCR-Tech [SCR-Tech LLC v. Evonik Energy Serv. LLC, 2013 NCBC 42, 2013 WL 4134602, at *6 (N.C. Bus. Ct. Aug. 13, 2013)] to create a tripartite privileged relationship. Blast is not a party to this litigation. Nor does Blast have any contractual authority to settle or otherwise affect the outcome of the suit against Defendants, unlike the insurer in Nationwide Mut. Fire Ins. [Nationwide Mut. Fire Ins. Co., 172 N.C. App. at 602-03, 617 S.E.2d at 45-46 (2005)]"; "Neither this Court nor the North Carolina Supreme Court has extended the common interest doctrine to relationships formed primarily for purposes other than indemnification or coordination in anticipated litigation. . . . Further, we are aware of no precedent indicating that federal courts within the Fourth Circuit have extended the common interest doctrine to a case 'where the sharing was not done by agreement relating to some shared actual or imminent, specific litigation.'. . . Blast's status as a non-party and the absence of evidence that this litigation was material to its asset purchase agreement with Defendants distinguishes this case from decisions relied upon by Defendants for protection through the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NC

Chapter: 20.7
Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, Dkt. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223 (W.D. La. March 29, 2016)
(inexplicably finding that a direct subsidiary did not have a common interest with its parent, and that the common interest therefore did not apply to communications between them; also finding plaintiff's disclaimer of any intent to sue the subsidiary meant the subsidiary could not be a common interest participant; "The February 2, 2016, email was written by Mike Dees, in house counsel for the Port and Port Rail, Inc., on the advice of outside counsel and was distributed to various Port employees and an employee of the non-party Port Rail, Inc. The Port argues that since Port Rail, Inc. is a direct subsidiary of the Port, it shares a common legal interest with the Port. We disagree. At the time the email was written the Port and Port Rail, Inc. were not co-clients being jointly represented in the ongoing litigation. Further, Port Rail, Inc. was not a potential client facing 'a palpable threat of litigation at the time of the communication.' The privilege applies when the parties share a common legal interest, not a commercial or financial interest and it does not extend to communications about joint business strategy. FSP Stallion 1, LLC v. Luce, 2010 U.S. Dist. LEXIS 110617, 2010 WL 3895914 *18 (U.S.D.C Nev. Sept. 30, 2010). IFG candidly admits that it has no intention of ever making Port Rail, Inc. a party to this litigation. Thus, if the email was in fact protected by the attorney-client privilege, we find that the privilege was waived by disclosing the communication to an employee of a non-party.")

Case Date Jurisdiction State Cite Checked
2016-03-29 Federal LA
Comment:

key case


Chapter: 20.7
Case Name: United States v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967 (E.D. Tex. March 15, 2016)
("'A shared rooting interest in the 'successful outcome of a case'. . . Is not a common legal interest.")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX

Chapter: 20.7
Case Name: Obesity Research Institute, LLC v. Fiber Research International, LLC, Case No. 15-cv-0595-BAS-MDD, 2016 U.S. Dist. LEXIS 32605 (S.D. Cal. March 11, 2016)
(holding that the supplier product did not have a common legal interest with a litigant; "The communications at issue pertain to the retention of ABC Laboratories to conduct testing of certain products in connection with this litigation. . . . The common interest issue pertains to Mr. Salerno and his company, Nutralliance, Inc. According to Mr. Salerno, Nutralliance supplies the raw material ingredients used in Plaintiff's Lipozene product to other companies that manufacture and bottle the Lipozene product ultimately sold by Plaintiff. . . . Neither Nutralliance nor Mr. Salerno are parties to this instant litigation and their legal, as opposed to commercial, interest in the outcome of this litigation is unclear. Accordingly, the Court declines to extend the common interest doctrine to Mr. Salerno and Nutralliance, Inc.")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal CA

Chapter: 20.7
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, "[T]he common interest privilege protects documents shared between parties who have a common legal interest; it does not extend to and cannot protect disclosure of communications regarding a common business interest.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA

Chapter: 20.7
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, but did not protect communications about allocation of a settlement payment between them, or their communications about how to keep generics out of the market; "Endo bore the cost of the Watson litigation and Teikoku's obligation to split costs for the proposed settlement was voluntary and a matter of, as its counsel said, 'good business.' That was certainly not the case in Arkema [Arkema Inc. v. Asarco, Inc., No. C05-5087 RBL, 2006 U.S. Dist. LEXIS 44106, 2006 WL 1789044 (W.D. Wash. June 27, 2006)] or Roper [Roper v. Old Republic Ins. Co., No. 09-C-154, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *1 (E.D. Wis. Feb. 1, 2010)], where the parties acknowledge joint fault and agreed to arbitrations specifically to allocate their various liabilities. Also, as recognized by both decisions, the arbitration proceedings and ultimate decisions were initiated after the underlying claims arose. The arbitrations, therefore, were 'internal' to the defense and not relevant to the underlying litigation. Roper, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *2; Arkema, 2006 U.S. Dist. LEXIS 44106, 2006 WL 2254478, at *2. This case is different, where the reasons that Endo and Teikoku entered into the Watson settlement are central to the merits of this case."; "As I noted in my prior ruling, the statements at issue must be in furtherance of the strategy with respect to the joint litigation in order to be covered by the common interest privilege. . . . As shown by the evidence before me, the comments at issue in the February 2, 2012, email regarding the cost split between Endo and Teikoku cannot have been in furtherance of the parties' joint strategy with Watson where: (i) Endo bore the costs of the Watson litigation; (ii) Teikoku decided to pay for some of the costs of the Watson settlement as a business matter; (iii) Endo made a substantial settlement offer prior to the February 2nd email; (iv) additional offers were made before the May 9, 2012, agreement in principle between Endo and Teikoku; and (v) significant aspects of the settlement between Endo and Teikoku were being negotiated well after the May 29, 2012, settlement with Watson. The factual predicate of this case is much more similar to cases finding that although parties might have a common interest, for example in the validity of patents being negotiated for sale, negotiations of those own parties' "'rights and re protected, as the parties' interests would have been adverse rather than common.'"; "I agree with Endo that there is substantial ground for difference of opinion on whether the common interest privilege -- that I have already found protects against disclosure of joint strategy discussions between Endo and Teikoku about the potential settlement with Watson -- extends to separate discussions between those parties concerning how the costs of settlement would be split. However, that narrow question is not a 'controlling question of law' on the merits of this case, nor is it apparent that immediate determination of that issue would materially advance the ultimate termination of the litigation. The request for certification for interlocutory appeal is DENIED. However, in order to allow Endo to seek mandamus relief from the Ninth Circuit, defendants need not produce the information at issue for thirty days (30) from the date of this Order, absent further order from the Ninth Circuit.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 20.7
Case Name: Peter Coppola Beauty, LLC v. Casaro Labs, Ltd., Case No. 14-81488-CIV-MARRA, 2016 U.S. Dist. LEXIS 24570 (S.D. Fla. Feb. 29, 2016)
("Sharing a desire to succeed in an action is not enough to create a common interest where there is no evidence of an agreement, the third-party was never party to the action, and the third-party never exercised control over or contributed to legal expenses.")

Case Date Jurisdiction State Cite Checked
2016-02-29 Federal FL

Chapter: 20.7
Case Name: Delaware Display Group LLC v. Lenovo Group Ltd., Civ. A. Nos. 13-2108-, -2109- & -2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016)
April 6, 2016 (PRIVILEGE POINT)

"Courts Analyze the Common Interest Doctrine's Application in a Patent Context"

Courts recognizing the common interest doctrine limit its non-waiver effect to participants' common legal rather than financial interests. It can be difficult to apply this abstract principle to communications between a patent owner and another company that will earn royalties from the patent's use. The latter has an obvious interest in the patent's enforceability, but is that a legal or merely a financial interest?

In Rembrandt Patent Innovations, LLC v. Apple Inc., the court dealt with the common interest doctrine's applicability to communications between patents' inventors and their employer (the University of Pennsylvania), which had retained royalty rights but not ownership rights. Nos. C 14-05094 & -05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016). The court acknowledged that the Ninth Circuit had not addressed "the scope of a common legal interest with regard to transactions between the inventors of a patent and partners or potential partners in business ventures seeking to monetize that patent." Id. At *14. The court ultimately held that the common interest doctrine protected the communications -- because the inventors and Penn had a common legal interest "in licensing and enforcement opportunities, perfecting title in the patent, and defending the patent's validity."Id. At *16. About three weeks later, the District of Delaware reached the opposite conclusion. In Delaware Display Group LLC v. Lenovo Group Ltd., the court assessed a privilege claim for files belonging to non-party Rambus -- which had similarly retained patent royalty rights but not ownership rights. Civ. A. Nos. 13-2108-, -2109- & -2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016). The court rejected the patent owner's argument that it shared a common interest with Rambus in assuring the patents' strength and enforceability. As the court put it, "[p]laintiffs' logic would find that any seller with rights to royalty payments is engaged in a common legal cause with its buyer. The only interest Rambus retained in the patents is a commercial one." Id. At *17.

Distinguishing between a legal and financial interest can be very difficult. Courts' disagreement about the common interest doctrine's applicability in the patent setting highlights the risk of relying on the common interest doctrine in seeking to avoid waiver of privilege protection.

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal DE
Comment:

key case


Chapter: 20.7
Case Name: Delaware Display Group LLC v. Lenovo Group Ltd., Civ. A. No. 13-2108-RGA, Civ. A. No. 13-2109-RGA, Civ. A. No. 13-2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016)
(analyzing the common interest doctrine's applicability to communications between non-party Rambus (and who sold patents to a company who then sold them to plaintiff) and the plaintiff; finding that Rambus's royalty interest was a commercial rather than a legal interest, so the common interest doctrine did not apply; also finding the work product doctrine inapplicable because Rambus was not a party to the lawsuit between plaintiff and defendant; finding that the non-testifying consultant rule did not apply to Rambus, because it was not a assisting a party in the litigation; "There is no common interest between Acacia and Rambus. Rambus assigned the entirety of its legal interests to the patents-in-suit when it entered into the assignment agreement with Acacia. . . . Since Rambus possesses no legal interest in the patents-in-suit, it seems unlikely that Rambus and Acacia have an identical legal interest. . . . Plaintiffs have not identified any case which holds that a mere right to receive a royalty, along with the obvious 'interest' in receiving that royalty, suffices to create a shared, identical legal interest. Plaintiffs argue that Acacia and Rambus share 'the same interest in obtaining strong and enforceable patents.'. . . This proves too much. Plaintiffs' logic would find that any seller with rights to royalty payments is engaged in a common legal cause with its buyer. The only interest Rambus retained in the patents is a commercial one. Thus, Plaintiffs have failed to show that teardown reports 'would not have been made but for the sake of securing, advancing, or supplying legal representation.'. . . Therefore, the common interest privilege does not apply.")

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal DE
Comment:

key case


Chapter: 20.7
Case Name: Gelman v. W2 Limited, Civ. A. No. 14-6548, 2016 U.S. Dist. LEXIS 14787 (E.D. Pa. Feb. 5, 2016)
(analyzing the common interest doctrine's application to communications between the plaintiff suing a defendant for breach of contract and the defendant's "authorized agent" which signed the contract -- and who was pursuing a lawsuit against the same defendant in another court; ordering an in camera production of the common interest agreement; "Where the entities asserting the doctrine are not co-defendants, the doctrine has been successfully asserted in connection with cases involving patent rights, see, e.g., Baxter Travenol Labs., Inc. v. Abbott Labs., 1987 U.S. Dist. LEXIS 10300, 1987 WL 12919, at *1 (N.D. Ill. June 19, 1987) ('A community of legal interests may arise between parties jointly developing patents . . . ."), and in connection with business interests during a corporate merger. See, e.g., Hewlett-Packard Co. v. Bausch & Lomb Inc., 115 F.R.D. 308, 310 (N.D. Cal. 1987) (Bausch & Lomb had a common legal interest with non-party GEC because the parties were in merger negotiations). The present case does not fall into any of these categories because Gelman and Greenwalt are not co-defendants in a criminal or civil matter, nor does either parties' lawsuit implicate a patent or merger. In short, assuming Pennsylvania would adopt the common interest doctrine, case law does not provide a definitive answer as to whether Gelman may properly assert the doctrine in the context of the present lawsuit."; "Not surprisingly, the parties dispute the degree of similarity that exists between Gelman and Greenwalt's legal interests; Plaintiff argues that his and Greenwalt's legal interests 'are aligned with one another,' while Defendants argue that 'the legal interests of Plaintiff and Mr. Greenwalt are unrelated.' Doc. 72 at 4; Doc. 73 at 3. It is certainly true that the suits are not identical. For example, Plaintiff's claims against Defendants in this action are dependent on the validity of the alleged Promissory Note, which specified Pennsylvania as the venue for dispute resolution, whereas the Promissory Note has no bearing on the claims asserted by Greenwalt in his action against the same defendants in Indiana federal court. Nor does the money Greenwalt either lent to or invested in Defendants' project play any role in Plaintiff's case here. On the other hand, both lawsuits name David Waller, Waller Marine, and W2 as defendants, arise from common facts and involve common witnesses, and assert similar claims against Defendants for conversion, breach of contract, fraudulent transfer/conveyance, and unjust enrichment. While not identical, the pleadings demonstrate that the legal interests of Gelman and Greenwalt are more than generically similar, and I conclude that they are sufficiently similar to trigger the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2016-02-05 Federal PA
Comment:

key case


Chapter: 20.7
Case Name: Rembrandt Patent Innovations, LLC v. Apple Inc., No. C 14-05094 WHA (lead case), No. C 14-05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016)
(analyzing the common interest doctrine's application to communication between: (1) patent inventors who worked for the University of Pennsylvania, and the University (would conveyed the patent title back to the inventors, but retained the monetary interest in the patents); and (2) the inventors and plaintiff, which had a purchase option on the patent (a) after they consummated the option contract; and (b) before they consummated the option contract; ultimately concluding that the inventors in pen had a common legal interest, and that inventors and the plaintiff had a common legal interest after they consummated the options contract (confirmed by in camera review), but that the inventors and the plaintiff did not have a common interest before they consummated the agreement; inexplicably holding that the inventors waived the work product protection by disclosing work product to the plaintiff in the absence of the common interest agreement; "Our court of appeals has not directly addressed the scope of a common legal interest with regard to transactions between the inventors of a patent and partners or potential partners in business ventures seeking to monetize that patent."; "With regard to Category 1 (communications between Penn and its counsel disclosed to the named inventors), Penn had an interest in monetizing its own patent through litigation or licensing, and the inventors shared Penn's interest in developing those strategies, inasmuch as they had a right to royalties from the patent."; "Given their rights to royalties from the patent, and their interest as possible assignees of the patent, the named inventors shared Penn's interest in engaging in 'full and frank' discussions with Penn's counsel about legal questions involved in licensing and enforcement opportunities, perfecting title in the patent, and defending the patent's validity. Moreover, recognizing privilege in these circumstances serves the purpose of the 'giving of information to [Penn's] lawyer to enable [her] to give sound and informed advice' with regard to the parties' joint interests in the patent. Ibid."; "Apple argues that the named inventors and Penn shared only commercial interests in generating revenue; however, Penn and the named inventors' joint interest in generating revenue through licensing and litigation and maintaining the strength and validity of the patent inherently relied on the joint pursuit of legal objectives. Rembrandt has made a sufficient showing that the withheld documents pertained to these legal interests, and Apple has failed to refute Rembrandt's case."; "Although this order finds that disclosure to the inventors -- in and of itself -- was not a waiver of that privilege, a further problem concerns whether adequate steps occurred to protect the confidentiality of the records in the hands of the inventors. When evaluating whether an attorney-client privilege attached, we should check to see if the parties treated it as such, for example by marking the communications 'privileged' and storing them in a special file, by entering into an agreement to maintain the confidentiality of the documents, and/or by avoiding disclosure to yet further parties. Here, the record is not developed well enough to answer this question, although the two documents submitted for in camera review from Category 1 lacked any 'privileged' or 'confidential' marking. This question might well have to be litigated inventor by inventor and maybe even document by document. Apple has chosen to rest its challenge on the omnibus absence of a common legal interest. Now that this challenge has been rejected, the Court finds that the record is too underdeveloped to allow a blanket determination, as Apple seeks, to sweep away the privilege on the other grounds. In light of our new emphasis on 'proportionality,' the Court doubts that any such exercise would be worthwhile.")

Case Date Jurisdiction State Cite Checked
2016-02-04 Federal CA
Comment:

key case


Chapter: 20.7
Case Name: Rembrandt Patent Innovations, LLC v. Apple Inc., No. C 14-05094 WHA (lead case), No. C 14-05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016)
(analyzing the common interest doctrine's application to communication between: (1) patent inventors who worked for the University of Pennsylvania, and the University (would conveyed the patent title back to the inventors, but retained the monetary interest in the patents); and (2) the inventors and plaintiff, which had a purchase option on the patent (a) after they consummated the option contract; and (b) before they consummated the option contract; ultimately concluding that the inventors in pen had a common legal interest, and that inventors and the plaintiff had a common legal interest after they consummated the options contract (confirmed by in camera review), but that the inventors and the plaintiff did not have a common interest before they consummated the agreement; inexplicably holding that the inventors waived the work product protection by disclosing work product to the plaintiff in the absence of the common interest agreement; "Rembrandt asserts attorney-client privilege as to Category 3B, disclosures made to the named inventors after it acquired an exclusive option to purchase the patent. It does not assert attorney-client privilege as to Category 3A, the disclosures made before it acquired that option (it only asserts work-product immunity as to those disclosures)."; "Here, once Rembrandt had acquired an exclusive option to purchase the patent, it was already 'engage[d] in a common legal enterprise' with the named inventors and communications between them were 'part of an on-going and joint effort to set up a common . . . Strategy' for perfecting title in the patent and enforcing it through litigation."; "Indeed, the documents submitted for in camera review from Category 3B support the conclusion that once Rembrandt acquired the option to purchase the patent, the parties' interests aligned and they began to pursue joint legal interests. The extension of the attorney-client privilege to disclosures in furtherance of that interest plainly serves the goal of Upjohn to enable 'full and frank' discussion with attorneys and ensuring attorneys can collect the information they need to provide accurate legal advice.")

Case Date Jurisdiction State Cite Checked
2016-02-04 Federal CA

Chapter: 20.7
Case Name: Rembrandt Patent Innovations, LLC v. Apple Inc., Nos. C 14-05094 & -05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016)
April 6, 2016 (PRIVILEGE POINT)

"Courts Analyze the Common Interest Doctrine's Application in a Patent Context"

Courts recognizing the common interest doctrine limit its non-waiver effect to participants' common legal rather than financial interests. It can be difficult to apply this abstract principle to communications between a patent owner and another company that will earn royalties from the patent's use. The latter has an obvious interest in the patent's enforceability, but is that a legal or merely a financial interest?

In Rembrandt Patent Innovations, LLC v. Apple Inc., the court dealt with the common interest doctrine's applicability to communications between patents' inventors and their employer (the University of Pennsylvania), which had retained royalty rights but not ownership rights. Nos. C 14-05094 & -05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016). The court acknowledged that the Ninth Circuit had not addressed "the scope of a common legal interest with regard to transactions between the inventors of a patent and partners or potential partners in business ventures seeking to monetize that patent." Id. At *14. The court ultimately held that the common interest doctrine protected the communications -- because the inventors and Penn had a common legal interest "in licensing and enforcement opportunities, perfecting title in the patent, and defending the patent's validity."Id. At *16. About three weeks later, the District of Delaware reached the opposite conclusion. In Delaware Display Group LLC v. Lenovo Group Ltd., the court assessed a privilege claim for files belonging to non-party Rambus -- which had similarly retained patent royalty rights but not ownership rights. Civ. A. Nos. 13-2108-, -2109- & -2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016). The court rejected the patent owner's argument that it shared a common interest with Rambus in assuring the patents' strength and enforceability. As the court put it, "[p]laintiffs' logic would find that any seller with rights to royalty payments is engaged in a common legal cause with its buyer. The only interest Rambus retained in the patents is a commercial one." Id. At *17.

Distinguishing between a legal and financial interest can be very difficult. Courts' disagreement about the common interest doctrine's applicability in the patent setting highlights the risk of relying on the common interest doctrine in seeking to avoid waiver of privilege protection.

Case Date Jurisdiction State Cite Checked
2016-02-04 Federal CA
Comment:

key case


Chapter: 20.7
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
(overturning Judge Gorenstein's order, and finding: (1) that the work product doctrine protects a taxpayer's documents involving the IRS's scrutiny into a deduction; (2) a taxpayer's disclosure of privileged communications to bank Consortium did not waive privilege, because the common interest doctrine applied despite the absence of ongoing litigation; noting that the IRS did not seek documents prepared by the taxpayer's law firm Dentons or shared only with lawyers and Ernst & Young, but sought "('EY Tax Memo') that identified potential U.S. tax consequences of the refinancing and restructuring, identified and analyzed possible IRS challenges to the Schaeffler Group's tax treatment of the transactions, and discussed in detail the relevant statutory provisions, U.S. Treasury regulations, judicial decisions, and IRS rulings."; "[T]he Schaeffler Group faced a threat of insolvency that would in turn cause a default on the Consortium's eleven-billion Euros loan. The Group and the Consortium could avoid this mutual financial disaster by cooperating in securing a particular tax treatment of a refinancing and restructuring. Securing that treatment would likely involve a legal encounter with the IRS. Both appellants and the Consortium, therefore, had a strong common interest in the outcome of that legal encounter."; "[T]he nature and viability of the transaction was driven by U.S. tax law, and both appellants and the Consortium had a common interest in seeing that law applied in a particular way. The documents in question were all directed to the tax issues, a legal problem albeit with commercial consequences, namely the possible insolvency of the Schaeffler Group and its default on the Consortium loan. Appellants' interest was in securing a refinancing. The Consortium's interest was in funding a refinancing that would protect its earlier investment and would itself be repaid, goals dependent on the resolution of legal tax issues. The fact that eleven-billion Euros of sunken investment and any additional sums advanced in the refinancing were at stake does not render those legal issues 'commercial,' and sharing communications relating to those legal issues is not a waiver of the privilege."; "[I]t was the interest in avoiding the losses that established a common legal interest. A financial interest of a party, no matter how large, does not preclude a court from finding a legal interest shared with another party where the legal aspects materially affect the financial interests.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: DRFP, LLC v. The Republica Bolivariana de Venezuela, Case No. 2:04-cv-793, 2015 U.S. Dist. LEXIS 141788 (S.D. Ohio Oct. 19, 2015)
(holding that disclosing privileged communications to a public relations firm waived the privilege, and that the firm did not have a common interest with the country of Venezuela, which hired the firm; "The Court is also skeptical of Skye's claim that the common interest doctrine applies. In an order filed on September 25, 2015 . . . The Court applied that doctrine, explaining that it served to protect communications between multiple clients who had a common interest in a litigated matter. As Venezuela points out, Sitrick does not appear to be a holder of an interest either in the notes that are the subject of this lawsuit or other notes purportedly issued by Venezuela; its interest in the outcome is purely a function of its having been hired by Skye. That is not sufficient to invoke the doctrine.")

Case Date Jurisdiction State Cite Checked
2015-10-19 Federal OH

Chapter: 20.7
Case Name: Martinez v. Liberty Insurance Corporation, Civ. A. No. 15-cv-00838-REB-MEH, 2015 U.S. Dist. LEXIS 138169 (D.D.C. Oct. 9, 2015)
(holding that a homeowner plaintiff's public adjusting firm was outside privilege protection, but had a valid common interest with the homeowner; "With these legal principles in mind and absent evidence to the contrary, the Court finds that, by the Plaintiffs' retention of Mr. Henderson [Lawyer] and Matrix [public adjusting firm] to assist them in securing insurance benefits from Defendant, the Plaintiffs, their attorney, and Matrix engaged in a common legal interest under Colorado law.")

Case Date Jurisdiction State Cite Checked
2015-10-09 Federal DC

Chapter: 20.7
Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)
(finding that a designer and a manufacturer of a product shared a common interest; implying that the companies were also related companies, but without describing the relationship; "In the case at bar, the Defendant (the company that sold the granulator at issue in the instant litigation), Glatt GIT (the company that designed and engineered the granulator), and Glatt GST (the company that manufactured the granulator) share a legal interest in defending against the threat of litigation from Plaintiff and recovering the outstanding balance on the contract with Plaintiff. Their interests are sufficiently aligned to bring them within the scope of the common interest doctrine. In light of this, no waiver occurred when Defendant shared its internal confidential reports concerning the three inspections . . . .")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal IL

Chapter: 20.7
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("But the question is not whether the parties have all issues in common. The point is whether there was a common interest in 'the subject matter of a communication between an attorney and a client concerning legal advice.'. . . There was: the investigation and ultimate litigation against Fenkell.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 20.7
Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(analyzing the common interest doctrine; "Nor do the parties involved need to be perfectly aligned for the doctrine to apply. Instead, they must show 'actual cooperation toward a common legal goal' concerning the documents they seek to protect.")

Case Date Jurisdiction State Cite Checked
2015-06-18 Federal IL

Chapter: 20.7
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
("Thus, to obtain the benefit of the common interest doctrine, the party claiming the protection of attorney-client privilege must demonstrate 'that the parties communicating: (1) have a common legal, rather than commercial, interest; and (2) the disclosures are made in the course of formulating a common legal strategy.'")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 20.7
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
("The nature of the parties' common interest must be legal and not solely commercial.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 20.7
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
(finding that a licensor and several licensees could not rely on a common interest agreement to avoid a waiver, because they had not worked together to pursue a common legal strategy; also finding the work product doctrine inapplicable; "Certainly, the record reflects that the licensees cooperated by providing DMFI with information that DMFI later used to respond to FDP. . . . But DMFI's claim that the licensees cooperated in 'formulating' DMFI's legal strategy is not supported by any evidence. First, the affidavit offered by DMFI contains indications that DMFI formulated its own legal strategy independent of any input from the licensees. . . . Additionally, the mere fact that a licensee provided basic information to DMFI about products it marketed under the Mark, see id., or requested and received DMFI's guidance on how to proceed . . . Does not establish that the parties 'coordinated' in formulating a legal strategy. These actions show at best that the licensees 'theoretically share' a similar interest with DMFI in the ultimate adjudication of FDP's claims. They do not show the kind of coordinated effort to devise a response that we would expect to see from parties who had undertaken to act together in pursuit of a common legal interest. . . . Additionally, the Court has reviewed the communications at issue. They provide no additional evidence that DMFI and its licensees were engaged in formulating a common legal strategy. In essence, they show only what was already suggested by DMFI's submissions in opposition to FDP's motion to compel: that DMFI's licensees cooperated with DMFI by providing factual information that DMFI sought from them. There is no evidence that the licensees had any hand in formulating a joint legal strategy or that they had at any time agreed to pursue a common legal goal with DMFI.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
(finding that a licensor and several licensees could not rely on a common interest agreement to avoid a waiver, because they had not worked together to pursue a common legal strategy; also finding the work product doctrine inapplicable; "We need not consider the issue of whether the parties' common interest is legal or merely commercial because DMFI has not met its burden of showing that the communications were 'made in the course of formulating a common legal strategy.'. . . The issue for this prong of the analysis "is not whether the parties theoretically share similar interests but rather whether they demonstrate actual cooperation toward a common legal goal.'. . . Such cooperation may be demonstrated through evidence of an agreement between the parties to jointly litigate, or evidence of a coordinated legal strategy by the parties -- particularly where both parties are represented by the same counsel, are actively involved in the litigation, exercise control over it, or contribute to legal expenses.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., No. 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
July 8, 2015 (PRIVILEGE POINT)

"Common Interest Protection Depends on Participants Cooperating in a 'Common Legal Strategy'"

The common interest doctrine can avoid the normal waiver implications of separately represented clients sharing privileged communications. But the doctrine applies only in specific situations, and requires careful nurturing and support.

In Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., No. 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015), Judge Gorenstein assessed a common interest agreement between defendant trademark licensor and several licensees. Plaintiff claimed that the participants shared only a common commercial rather than a legal interest, but the court found it unnecessary to address that issue. Instead, the court focused on the doctrine's requirement that common interest participants cooperate in pursuing a common legal strategy. After reviewing the withheld communications in camera, the court noted that the licensees provided the licensor "factual information" the licensor sought from them — but that "[t]here is no evidence that the licensees had any hand in formulating a joint legal strategy or that they had at any time agreed to pursue a common legal goal" with the licensor. Id. At *12.

Separately represented clients contemplating a common interest agreement should recognize this prerequisite to the doctrine's applicability — and then make sure that their correspondence reflects the formulation and pursuit of a common legal strategy.

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("[T]he Intervenors cannot simply point to a generalized interest in passing constitutional legislation to justify invoking the [common interest] doctrine. It is dubious to argue that individual legislators and the Intervenors were operating under an implied common interest agreement if the individual legislators were completely unaware of being part of such an agreement. This is especially important here because the Intervenors have assumed that they had a common interest with individual legislators all along. The Intervenors have made no effort to verify -- even to this day -- whether those parties in fact concurred in its assessment of their supposed common interest, and it is clear that any communications or document exchanged prior to the establishment of a common interest agreement are not protected from disclosure.")

Case Date Jurisdiction State Cite Checked
2015-05-26 Federal VA

Chapter: 20.7
Case Name: In re Milo's Kitchen Dog Treats Consolidated Cases, Civ. A. No. 12-1011, 2015 U.S. Dist. LEXIS 63281 (W.D. Pa. May 14, 2015)
(finding that there was no common interest between the plaintiffs and potential class members, with whom the plaintiff communicated by Facebook message; "Plaintiff has failed to demonstrate these factors. Although Plaintiff and Ms. Corcoran clearly have a common interest in this litigation, Plaintiff have not submitted any evidence, or even advanced the argument, that she and Ms. Corcoran agreed to a joint defense effort or a shared litigation strategy. It therefore follows that their communications could not have been made pursuant to such an agreement. In addition, no evidence has been provided to the Court that Ms. Corcoran had formally opted-in to the prospective class at the time or formally engaged counsel to represent her. Further, it is not at all clear to the Court that, having been posted on Facebook, the communications between Plaintiff and Ms. Corcoran were not disclosed to other third parties. Under these circumstances, the common interest doctrine does not rectify Plaintiff's waiver of the attorney client privilege or serve to protect the Facebook message between Plaintiff and Ms. Corcoran from discovery.")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal PA

Chapter: 20.7
Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; finding that the company and the CEO shared a common interest in coordinating a response to a Wall Street Journal Article; "In this case, lululemon and Wilson were not adversaries negotiating an arm's-length transaction. Rather, they were attempting to coordinate a statement after the Wall Street Journal raised questions about the propriety of Wilson's trades. Faced with questions of potential wrongdoing, lululemon and Wilson shared privileged communications for the purpose of furthering the common legal strategy of responding to the inquiry within the parameters of the securities laws and in the reasonable anticipation that litigation might ensue in which the content of their responses might be subject to scrutiny. Thus, to the extent their objectives overlapped, it was due primarily to their common legal, as opposed to commercial, interest. I conclude, therefore, that lululemon has satisfied its burden of showing a common interest sufficient to support its claim of privilege as to the WSJ Email Chain.")

Case Date Jurisdiction State Cite Checked
2015-04-30 State DE

Chapter: 20.7
Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; finding that the company and the CEO shared a common interest in coordinating a response to a Wall Street Journal Article; "For the parties to have a common interest, the interest must involve primarily legal issues, rather than relate to a common interest in a commercial venture.")

Case Date Jurisdiction State Cite Checked
2015-04-30 State DE

Chapter: 20.7
Case Name: Lislewood Corp. v. AT&T Corp.; AT&T Corp. v. Marriott Int'l, Inc., No. 13 CV 1418, 2015 U.S. Dist. LEXIS 43089 (N.D. Ill. March 31, 2015)
(analyzing the common interest doctrine; finding lessee AT&T and subleasee Marriott could enter into a common interest agreement, because the latter was compelled to indemnify the former; noting that AT&T and Marriott had some adverse interests, but that did not prevent them from enjoying privilege protection for communications on which they shared a common interest; "[T]his contention ignores the fact that AT&T's third-party complaint and the Sublease explicitly acknowledge Marriott's obligation to indemnify AT&T for any claims arising out of its use of the Premises. . . . In other words, the question of Marriott's indemnification obligation arises precisely because it is an indemnitor of Lislewood's claim against AT&T. . . . Accordingly, in this context AT&T and Marriott do share a common legal interest -- that AT&T is found not liable in Lislewood's original action. . . . AT&T and Marriott claim joint-defense privilege over communications concerning the Sublease, repairs, tax payments, engineering notes, communication about landlords' requested repairs, turnover issues, and the joint-defense agreement itself. . . . These are precisely the issues about which AT&T and Marriott have a common interest adverse to Lislewood and to which the common-interest doctrine therefore applies.")

Case Date Jurisdiction State Cite Checked
2015-03-31 Federal IL

Chapter: 20.7
Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "The doctrine does not, however, extend to communications about a joint business strategy that happens to include a concern about litigation.")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 20.7
Case Name: Callwave Comm., LLC v. Wavemarket, Inc., No. C 14-80112 JSW (LB), 2015 U.S. Dist. 22374 (N.D. Cal. Feb. 23, 2015)
(finding that a patent licensee and licensor could enter into a valid common interest agreement; "Location Labs says that it shares with AT&T a common interest 'in a joint defense against the allegations by Callwave.'. . . It says that it and AT&T, 'a licensee and licensor, had a common interest in defending against the claims of Callwave, extending to any indemnification provided, and it is precisely these matters of common interest that were discussed in the document at issue.'. . . The court agrees. First, both Location Labs and AT&T have an interest in defeating Callwave's claims of patent infringement in the Underlying Litigation. That they also have negotiated possible indemnification with respect to those claims does not necessarily cancel that out.")

Case Date Jurisdiction State Cite Checked
2015-02-23 Federal CA

Chapter: 20.7
Case Name: Perez v. Clearwater Paper Corp., Case No. 3:13-CV-00461-BLW, 2015 U.S. Dist. LEXIS 20143 (D. Idaho Feb. 17, 2015)
(finding that the government and a whistleblower could participate in a common interest arrangement; "A common interest exists between the government and Tenny. Indeed, their interests are nearly identical. Section 11(c) of the Occupational Safety and Health Act gives the Secretary of Labor sole enforcement authority in a retaliation case. There is no private right of action.")

Case Date Jurisdiction State Cite Checked
2015-02-17 Federal ID

Chapter: 20.7
Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; finding that there was no common interest between the wife and the litigation funder; "Turning to Plaintiff's common legal interest argument, once again the substance of Ms. Napp's role undermines this privilege theory. Ms. Napp is not a party to this litigation, and there has been no suggestion that she has any legal claim against Defendants whatsoever. She thus cannot possibly share any legal interest with Plaintiff sufficient to invoke the common interest doctrine. . . . Although the two may have a common financial interest in the outcome of this litigation, that relationship does not fall into the narrow category primarily reserved for co-litigants pursuing a shared legal strategy. . . . The 'Joint Interest' agreement between Ms. Napp and Plaintiff cannot change the substance of their relationship, which is inherently financial and in no way within the mold of a common interest.")

Case Date Jurisdiction State Cite Checked
2015-01-30 Federal NY

Chapter: 20.7
Case Name: Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal
Comment:

key case


Chapter: 20.7
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "In addition to subjectively having established a joint defense, the defendants also possess a community of interest sufficient to apply the common interest doctrine. The city and HSWA share a common goal not only in this litigation and the continued validity of the solid waste ordinances in dispute, but also in providing solid waste services to the city of Hopkinsville.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY

Chapter: 20.7
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "While the disclosures were made during the due diligence period after the parties had signed an agreement in reality that timing does not establish a common interest. The disclosures were not contingent on the signed agreement; they were contingent on Acacia [potential buyer] finding satisfactory information during the investigation process, otherwise '(i) [Acacia] shall have no payment obligations or liability to [the seller]; and (ii) this Agreement shall automatically terminate upon completion of the Investigation period.'. . . Therefore, a common legal interest could only exist after the disclosures were made because that is when the parties' agreement took effect in reality.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY

Chapter: 20.7
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "Similarly, no common legal strategy existed between the Acacia [potential buyer] and the patent sellers. In order to establish a common legal strategy, "'[w]hat is important is not whether the parties theoretically share similar interests but rather whether they demonstrate actual cooperation toward a common legal goal.'". . . Here, Acacia does not formulate a legal strategy with any of the patent sellers. Instead, Acacia, 'in its sole judgment decider[s] to institute enforcement actions . . . [and] reserves the sole right to select counsel, direct the litigation, and to negotiate and determine the terms of any settlement or other disposition.'. . . The terms of the contracts, therefore, preclude any common legal strategy and provide Acacia with total discretion in prosecuting infringements.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "Acacia [potential buyer] argues that the materials remain privileged, notwithstanding their disclosure to third party sellers, because a common legal interest exists and because the disclosures were made in the course of formulating a common legal strategy. The argument is rejected. Acacia is pursuing its own commercial interest in attempting to ascertain whether the patents at issue are fertile with the possibility of infringement.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY

Chapter: 20.7
Case Name: In re Bank of New York Mellon Corp. Forex Trans. Litig. v. The Bank of New York Mellon, 12-md-2335 (LAK), 11-cv-6969 (LAK), 2014 U.S. Dist. LEXIS 159069 (S.D.N.Y. Nov. 10, 2014)
(analyzing the common interest doctrine; finding that a non-identical but common commercial or financial common interest satisfies common interest requirements; "The weight of the rather limited authority on this issue suggests that the common interest doctrine is narrow that it shields from discovery confidential attorney-client communications voluntarily disclosed to a third party only if that third party shares with the disclosing party some identifiable and concrete legal interest. Under this formulation of the doctrine, a common commercial interest is insufficient to trigger its protections. So, too, is a shared goal or 'concerns about potential litigation.' In fact, a party seeking the protection of the common interest doctrine in a court that adheres to what appears to be the majority view of that doctrine must show that it developed with the relevant third party an agreement, formal or informal, 'embodying a cooperative and common enterprise towards an identical legal strategy.'"; "On the other hand, some courts have taken a more expansive view of the common interest doctrine one that protects confidential attorney-client communications voluntarily disclosed to a third party even if that third party shares only a commercial or financial interest with the disclosing party."; "This case falls somewhere along the spectrum between the poles represented by the views thus summarized. Certainly the Bank and its pension plan's investment managers had more than a simple commercial interest in the subject addressed by the Groom Memo. The Bank was concerned with ensuring that its pension plans complied with ERISA, it obtained legal advice on that issue, and it communicated that legal advice to the investment managers who invested plan assets. . . . On the other hand, the Bank and the investment managers did not face existing or imminently threatened litigation. They did not enter into a joint defense agreement, certainly not explicitly and probably not implicitly. And the Bank's threat to seek indemnity from the investment managers if they failed to comply with ERISA coupled with the Bank's disclosure of the advice it received laid down a marker that was in some degree commercial in nature it effectively told the investment managers that the Bank would hold them responsible if they did not handle the compliance issues in at least as exacting a manner as the Groom Memo had recommended."; "[W]e live in a very complex society. The Bank and its pension plans are obliged to comply with ERISA, a very complicated statute, and to do so in the context of a complicated investment world. The division of functions that characterizes every sector of our economy is reflected by the Bank's delegation of at least some investment responsibilities to the investment managers. And society in general has an important interest in ensuring that those involved in such heavily regulated and complicated activities act in the fullest possible knowledge of the legal implications of what they do.")

Case Date Jurisdiction State Cite Checked
2014-11-10 Federal NY
Comment:

key case


Chapter: 20.7
Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "Bellao's [third party] testimony does not establish commonality in a litigation-related cause against a shared adversary, nor does the Court find upon review of the communications that they were made in furtherance of assisting such a cause. . . . Bellao testified that, at the time of her meeting with Swope Rodante in 2010, she knew she was not liable for any claims resulting from the accident. Bellao further testified that she had no claims against GEICO, and brought no claims at all relating to the accident. Moreover, Bellao was not involved in the accident, did not own the vehicle at issue in the accident, and, as of February 2010, she did not believe she was exposed to any liability for the accident. It appears that the extent of Bellao's involvement in Plaintiff's claim, aside from her awareness due to her personal relationship with Plaintiff, was merely her status as a named party on the GEICO insurance policy. This limited contractual interest does not, as matter of law, establish the type of commonality required by the exception, and, therefore, cannot be used to defeat waiver here.")

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal FL

Chapter: 20.7
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *21 (W.D. Wash. Sept. 19, 2014)
("It is not sufficient that attorneys for different clients possess 'a shared desire to see the same outcome in a legal matter.' . . . . Rather, they must make the communication in pursuit of a joint strategy and in accordance with a written or unwritten agreement.")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 20.7
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "We recognize, however, that any privilege, including the attorney-client privilege or the protection afforded to work product, restricts the disclosure of information, even highly relevant information, and may intrude on the fact-finding function of litigation. Kociolek, supra, 23 N.J. at 414-15, 129 A.2d 417. Yet, those concerns do not warrant adoption of the most conservative formulations of the common interest rule, such as requiring that the interests of the parties be completely congruent or identical . . . Or requiring a threat of actual litigation . . . Or requiring that the common interest be legal rather than purely commercial.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.7
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *37 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "In all of the cases relied upon by Potandon, it is clear to the Court that the threat of impending litigation, or actual litigation, was involved. Yet Potandon seeks to stretch the bounds of the common interest doctrine too far. It acknowledges that there was no threat of litigation at the time the communications were shared, just a common desire to remain in compliance with the Capper-Volstead Act. The communications therefore involve legal compliance advice merely to remain compliant with the Act.")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.7
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *16 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The privilege does not extend to communications about a joint business strategy between or among different entities even if the communication happens to include a concern about litigation.")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.7
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *22-23 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "[T]here is no indication that the 'client,' in this case the cooperative (through its member(s)), sought information from the attorney for the cooperative in confidence and limited disclosure to third persons for whom disclosure was necessary for the accomplishment or purpose for which the attorney was consulted. Rather, the information was shared by and among various entities for purposes other than strictly the cooperative's business. The attorney-client privilege does not extend to communications about a joint business strategy between or among different entities, even if the communications happen to include a concern about potential litigation.")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.7
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *31-32 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The fact they may have had a shared desire to maintain compliance and avoid litigation also does not transform the cooperatives' common interest with Potandon 'into a legal, as opposed to commercial, matter.' . . . . Although Potandon characterizes the interest it shared with the cooperatives as a 'legal' interest, naming it as such does not transform its business interest into a legal interest for purposes of the common interest doctrine. There is no evidence of any concern regarding pending or threatened litigation raised during the time period of these communications. Even if there was a general consensus to avoid litigation by maintaining compliance with Capper-Volstead, 'a business strategy which happens to include a concern about litigation is not a ground for invoking the common interest rule.'")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.7
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "A shared rooting interest in the 'successful outcome of a case' is not a common legal interest."; "Ms. McCullough and Ms. Marrero no doubt had a common interest in seeing the FOP punished for what they perceived to be the wrongs each of them allegedly suffered. If that were all, it would not constitute the required identity of legal interest required by the cases."; "Although it is a close question, the interests of Ms. McCullough and Ms. Marrero are not 'identical, legal interests.' While the Complaints in both cases allege generally that there was sexual harassment and discrimination at the FOP, Ms. Marrero's complaint is dominated by her allegations regarding her supervisor's harassment. Ms. McCullough's Complaint does not involve him. Thus, the 'common interest' doctrine is not applicable here.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.7
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representations and the common interest doctrine; finding that two policewomen who claimed sexual harassment did not share a common interest, so that they could not engage in privileged communications after the same lawyer stopped representing both of them in a joint representation; analyzing the common interest doctrine; "A shared rooting interest in the 'successful outcome of a case' is not a common legal interest.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.7
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
(analyzing common interest doctrine; "The 'common interest' LMI asserts exists between it and the Navy, in essence, is little more than a shared desire to see the same outcome in the present case, i.e. a judgment in LMI's favor that requires Steadfast to reimburse LMI for the cost of remediating the pollution conditions at the sites at issue in this case. This interest is insufficient to entitle LMI to protection under the common interest doctrine with respect to the documents with an underlying claim of attorney-client privilege. . . . While LMI does claim to have a written agreement between it and the Navy, entitled 'Common Interest Agreement Relative to Steadfast Insurance Policies,' it provides no evidence as to what that agreement entailed, let alone whether the communications LMI is seeking to protect were made 'in pursuit of a joint strategy in accordance with' that agreement."; "[A] common interest was found between the parties primarily on the basis that their disclosures were made to advance a joint legal strategy concerning either separate litigation involving similar claims and issues or reasonably anticipated joint litigation. Here, however, the Navy has not filed a separate suit against Steadfast concerning the remediation sites at issue, nor is it an insured party under the ELI Policy between LMI and Steadfast that is central to LMI's claims in this case, therefore precluding the possibility of a suit by the Navy against Steadfast presenting similar issues to those that are the subject of this case.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 20.7
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
("Similarly, the common interest doctrine does not apply to the communications disclosed to the City of Vallejo. LMI argues that it also shares a common interest with the City of Vallejo because the City and LMI both want the environmental contamination at Mare Island cleaned up 'sooner rather than later' and 'redevelopment to proceed as soon as possible.'. . . LMI further notes that the City is also a party to the Common Interest Agreement Relative to Steadfast Insurance Policies that LMI entered into with the Navy. However, the City is not a party to the ELI Policy at issue in this case, is not currently in litigation against Steadfast concerning similar issues to those presented in the current case, and the record does not present any indication of anticipated future joint litigation by LMI and the City against Steadfast concerning similar issues to those presented in this case. Furthermore, the fact that the City was a party to the common interest agreement is unpersuasive for the same reasons stated above with respect to the Navy. Finally, LMI has made no showing that the attorney-client communications at issue were revealed to the City in an effort to further LMI's purpose for seeking legal advice."; "[T]he court finds that LMI and the Navy have a common financial interest in obtaining an outcome resulting in LMI collecting as many of its remediation expenses as possible from Steadfast under the ELI Policy.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 20.7
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(analyzing the common interest doctrine; "[T]he parties must have 'a common legal, as opposed to commercial, interest.'")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 20.7
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *9 10 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "[I]t is clear that the common interest doctrine may have some applicability. The State and Callahan were co-Plaintiffs in a lawsuit against the same adversary and the parties shared the common legal interest of obtaining compliance by IHSA with disability rights laws. The fact that Callahan was willing to accept via settlement something less than the full relief originally requested in the Complaint does not automatically preclude the State from invoking the common interest doctrine to shield from discovery otherwise privileged communications with her. Instead, among other things, given the State's active involvement in attempts to resolve this matter on Callahan's behalf, it may have been entirely reasonable for the State to have the expectation that communications between Callahan and her attorneys and attorneys from the Attorney General's office regarding this matter would remain confidential.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 7/14

Chapter: 20.7
Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *42, *44, *45-46, *47-48, *50 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "[B]y Miller's own classification, the contemplated funding transaction was merely commercial or financial, and it documents conveyed to funders was not protected by the attorney-client privilege."; "To avoid waiver and shield from discovery information it provided prospective funders, Miller seeks to invoke the 'common interest' doctrine, claiming claimed [sic] to be privileged that it shared with the funding sources a 'common interest in the successful outcome of the litigation.'"; "In this, as in most Circuits, the 'common interest' doctrine will only apply 'where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise.' . . . A shared rooting interest in the 'successful outcome of a case' -- and that is what Miller explicitly alleges here -- is not a common legal interest."; "Here, there was no legal planning with third party funders to insure compliance with the law, litigation was not to be averted, as it was well underway, and Miller was looking for money from prospective funders, not legal advice or litigation strategies. The funders, for their part, were interested in profit. Legal strategies and subtleties were exclusively for Kirkland & Ellis and for its predecessor in the case, Nixon Peabody. In short, the funders and Miller did not share a common legal interest, and materials shared with any actual or prospective funders lost whatever attorney-client privilege they might otherwise have enjoyed." (footnote omitted); "In conclusion, any documents otherwise protected by the attorney-client privilege that Miller shared with any prospective funder lost their protection under the attorney-client privilege when shared with third party funders.")

Case Date Jurisdiction State Cite Checked
2014-01-06 Federal IL B 5/14

Chapter: 20.7
Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014)
March 12, 2014 (PRIVILEGE POINT)

"Northern District of Illinois Analyzes Privilege and Work Product Issues Involving Litigation Funding"

Large companies increasingly turn to litigation funding as a means of financing commercial litigation. Only a few decisions have dealt with the privilege and work product waiver impact of companies disclosing protected documents to potential funders and the ultimately chosen funder.

In Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014), the Northern District of Illinois issued an extensive opinion on these issues. After finding that litigation funding does not violate Illinois champerty or maintenance doctrines, the court held as follows: (1) the "deal documents" between the company and the ultimately chosen funder were irrelevant and therefore not discoverable; (2) the company waived attorney-client privilege protection for any materials shared with "any actual or prospective funders" – rejecting the company's common interest doctrine argument after concluding that "[a] shared rooting interest in the 'successful outcome of a case' . . . is not a common legal interest"; and (3) the company also waived its separate work product protection for any work product that it shared with prospective funders – "except those with which it had a confidentiality agreement." Id. at *33, *46-48, *72. The court noted "it appears that [the company] took protective measure with some but perhaps not all prospective funders." Id. at *71-72.

Companies communicating with prospective litigation funders must remember the fragility of the attorney-client privilege and the importance of confidentiality agreements when disclosing work product to any third party.

Case Date Jurisdiction State Cite Checked
2014-01-06 Federal IL
Comment:

key case


Chapter: 20.7
Case Name: Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 284 (W.D. Pa. 2014)
(analyzing documents created during a post-accident investigation, and application of the common interest doctrine; "In addition, Patterson's [employer of a worker who died at an oil rig] interests are aligned with Chesapeake. Patterson's potential obligation to indemnify Chesapeake for any liability plaintiff establishes against it aligns Patterson's interests with Chesapeake and those defendants' whose liability would lead back to liability against or otherwise implicate the legal duties of Chesapeake. For the purposes of confronting and mounting a defense against plaintiff's claims, Patterson's interests are one and the same with these defendants. Thus, as between Patterson and these defendants the common interest requirement is satisfied."; "It follows that as long as the communications were made in the course of these parties' common interest and they were undertaken in furtherance of that joint undertaking, they continue to be protected by the privileges. Such communications are consistent with and in furtherance of the purposes underlying each privilege. Consequently, they continue to enjoy the protection afforded to the respective privileges [work product doctrine protection].")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA B 8/14

Chapter: 20.7
Case Name: FDIC v. Fid. & Deposit Co., No. 3:11-cv-00019-RLY-WGH, 2013 U.S. Dist. LEXIS 167833, at *9-10 (S.D. Ind. Nov. 26, 2013)
(finding that an insurance company could not depose a lawyer who had represented a bank for which the FDIC was acting as receiver; noting that the lawyer had represented the bank in several matters, but no longer represented the bank after it was taken over by the FDIC; "[A]ny communications between Mr. Rifken [lawyer], the Pearlman Bankruptcy Trustee, and other members of the Pearlman Bankruptcy Creditors Committee are protected by the common interest doctrine because they share a common legal interest in the maximization of the bankruptcy estate.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal IN B /14

Chapter: 20.7
Case Name: FDIC v. Fid. & Deposit Co., No. 3:11-cv-00019-RLY-WGH, 2013 U.S. Dist. LEXIS 167833, at *12-14 (S.D. Ind. Nov. 26, 2013)
(finding that an insurance company could not depose a lawyer who had represented a bank for which the FDIC was acting as receiver; noting that the lawyer had represented the bank in several matters, but no longer represented the bank after it was taken over by the FDIC; finding that the common interest doctrine protected communications between the lawyer representing the bank and the bankruptcy trustee; "Like the debtor in possession, the trustee is also a fiduciary who seeks to maximize the value of the estate. . . . Because a trustee is under similar obligations to a debtor in possession, the court finds the reasoning in [In re] Mortgage & Realty Trust [, 212 B.R. 649 (Bankr. C.D. Cal. 1997)] applies equally in this case. Therefore, the court agrees with the Magistrate Judge that a common interest to maximize the value of the estate existed, and some, if not all, of Mr. Rifken's [lawyer] communications in this regard are protected.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal IN B 5/14

Chapter: 20.7
Case Name: Harpel v. Nicholson, Civ. A. No. 12-10280-RWZ, 2013 U.S. Dist. LEXIS 141684, at *7 (D. Mass. Oct. 1, 2013)
(analyzing the common interest doctrine; finding that partnership shared a financial rather than a legal interest; "The common enterprise between Eastwood/ISG [non-parties] and Harpel was of a business, not legal, nature. To be sure, the advisory agreement anticipates litigation, but Eastwood/ISG's involvement in the matter was not in furtherance or protection of its own legal interests, but rather to assist Harpel and Bernstein [plaintiff's lawyer] in hopes of profiting from Harpel's potential recovery. This was, in essence, a commercial arrangement. That Eastwood/ISG obviously shared Harpel's desire to prevail against Nicholson, and stood to benefit financially therefrom, does not amount to the existence of a common legal interest.")

Case Date Jurisdiction State Cite Checked
2013-10-01 Federal MA B 5/14

Chapter: 20.7
Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *10 (N.D. Cal. June 10, 2013)
("Here, the documents withheld due to 'common interest' for the most part reflect a situation where two friendly co-workers are discussing their respective proceedings with the VA. Plaintiff has cited no case that extends the common interest privilege so far, and the withheld communications do not suggest that the parties are joining forces to obtain more effective legal assistance. Rather, as noted above, in many instances Plaintiff treated Williams [a lawyer who is also a personal friend of plaintiff] as her attorney, undercutting the rationale for the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal CA B 4/14

Chapter: 20.7
Case Name: Smedley v. Lambert, No. 3:12-0003, 2013 U.S. Dist. LEXIS 45460, at *5 (M.D. Tenn. Mar. 29, 2013)
("The common interest privilege widens the circle of persons to whom clients may disclose privileged communications, and permits the parties in a joint defense to communicate among themselves and with their attorneys on matters of common legal interest for the purpose of coordinating their joint legal strategies.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal TN B 3/14

Chapter: 20.7
Case Name: Maxtena, Inc. v. Marks, Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17-18, *21, *25 (D. Md. Mar. 26, 2013)
(finding that a company and the state of Maryland could enjoy the benefits of a common interest agreement, because the state was considering investing in the company; "[I]n support of the existence of an oral common interest agreement, Maxtena and the State present the sworn statements of Mr. Dann and Timothy McEvoy, Maxtena's litigation counsel."; "Although rooted in the entities' burgeoning commercial relationship, this shared interest is decidedly legal in nature as it relates to their shared concern about potential civil liability to Marks. Thus, unlike in Aramony [United States v. Aramony, 88 F.3d 1369 (4th Cir. 1996)], the State's concern -- at least with respect to the subject matter of the second group of emails -- was not limited merely to preserving its reputation or even protecting its financial interests as a soon-to-be stockholder in Maxtena." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-03-26 Federal MD B 3/14

Chapter: 20.7
Case Name: Buxbaum v. St. Vincent's Health Servs., Inc., Civ. No. 3:12CV117 (WWE), 2013 U.S. Dist. LEXIS 2246, at *7-8 (D. Conn. Jan. 7, 2013)
("'[T]he common interest rule extends the attorney client privilege to privileged communications revealed to a third party who shares a common legal goal with the party in possession of the original privilege. The parties need not be actively involved in litigation; they must, however, demonstrate cooperation in formulating a common legal strategy. The rule does not encompass a joint business strategy that merely happens to include as one of its elements a concern about litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-07 Federal CT B 7/13

Chapter: 20.7
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013)
("The common interest rule does not apply merely because two parties share the same attorney or because one party has an interest in a litigation involving another party. Rather '[t]here must be a substantial showing by parties attempting to invoke the protections of the privilege of the need for a common defense as opposed to the mere existence of a common problem.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 20.7
Case Name: JTR Enters., LLC v. An Unknown Quantity of Columbian Emeralds, 297 F.R.D. 522, 528 (S.D. Fla. 2013)
("[S]haring a desire to succeed in an action is not enough to create a common interest where there was no evidence of an agreement, the third-party was never party to the action, and the third-party never exercised control over or contributed to legal expenses.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 5/14

Chapter: 20.7
Case Name: Domanus v. Lewicki, No. 08 C 4922, 2012 U.S. Dist. LEXIS 177325, at *14-15 (N.D. Ill. Dec. 14, 2012)
(analyzing a derivative case; ultimately holding that the company and individual defendants in a derivative case did not share a common interest; "[I]t is simply not reasonable for the direct Defendants to believe they have a common legal interest with the very entities they are accused of defrauding.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal IL B 9/13

Chapter: 20.7
Case Name: Crosby v. Blue Cross Blue Shield of La., Civ. A. No. 08 0693 SECTION: "S" (4), 2012 U.S. Dist. LEXIS 159605, at *12 (E.D. La. Nov. 7, 2012)
("In the Fifth Circuit 'the two types of communications protected under the [common legal interest] are: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel.". . . '[I]t is questionable in the Fifth Circuit whether the common interest doctrine extends to plaintiffs.'. . . The Court has found no authority in this circuit which extends 'common legal interest' principles to plaintiffs.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal LA B 5/13

Chapter: 20.7
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12-mc-00131-SI, 2012 U.S. Dist. LEXIS 158348, at *2, *3-4 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "SawStop, however, has not shown that it shares a sufficient common legal interest with the recipients of the two documents at issue, prospective investors, to support application of the common interest doctrine. Although SawStop argues that other courts have found a sufficient common interest in 'valid and enforceable patent rights,' such a sufficient common interest has always been found to be part of a closer and more tangible legal concern."; "There is no sufficiently close and tangible legal concern present here. The sole reason the recipients of the documents -- potential investors -- would be interested in the 'legal advice' found therein would be to estimate their opportunity for pecuniary gain, a purely commercial concern. . . . Without such a close and tangible legal concern -- aside from general economic interest in investing in a company that had valid intellectual property rights -- the common interest doctrine threatens to create an intellectual property exception to the attorney-client privilege waiver doctrine.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.7
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12 mc 00131 SI, 2012 U.S. Dist. LEXIS 158348, at *7 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "[T]he Court is not persuaded that the common interest doctrine is applicable when the disclosure of legal advice is to an unknown number of potential investors, there is no formal confidentiality agreement between the parties, and the parties' sole joint legal interest is in valid intellectual property rights needed in order to maximize the value of an investment.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.7
Case Name: Glassman v. Crossfit, Inc., Civ. A. No. 7717 VCG, 2012 Del. Ch. LEXIS 248, at *9, *10, *11 (Del. Ch. Oct. 12, 2012)
(finding that the common interest doctrine did not apply to protect communications between a wife going through a divorce and the buyer of her interest in a company; "Though the Defendants do concede that Ms. Glassman and Anthos would have shared a common interest if they had 'discussed the threat of both being sued by Greg Glassman or CrossFit,' the Defendants contend that there were no such communications." (internal citation omitted); "Ms. Glassman may not withhold relevant documents under the common-interest doctrine simply because her deal with Anthos might be affected by the Arizona litigation or because the deal might be subject to litigation by the Defendants."; "[C]ommunications about a business deal, even when the parties are seeking to structure a deal so as to avoid the threat of litigation, will generally not be privileged under the common-interest doctrine. The doctrine only protects those communications that directly relate to the parties' legal interests, such as their potential common defense strategies.")

Case Date Jurisdiction State Cite Checked
2012-10-12 State DE B 12/13

Chapter: 20.7
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *11-12 (W.D. Va. June 28, 2012)
(holding that the common interest doctrine did not protect communications between a corporate defendant and the Commonwealth of Virginia, which had intervened in the case only to uphold the pertinent law's constitutionality; noting that the communications did not relate to that topic; "[T]he Commonwealth's only 'common interest' with EQT in this litigation is to defend the Act against constitutional attack. Entries 101-122, 127-129 and 132-132.1 on the Privilege Log make no mention of any discussion or exchange of information regarding the constitutionality of the Act. At best, entries 101-103.1, which refer to a hearing where the constitutional arguments were addressed by the court, may be covered by the common interest doctrine -- if it can be shown that these documents involved communications regarding the constitutionality of the Act. Based on the information provided on the Privilege Log by EQT, the remaining entries at issue, 104-122, 127-129 and 132-132.1, do not concern any discussions of the constitutionality of the Act.")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA B 1/13
Comment:

key case


Chapter: 20.7
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *9-10 (W.D. Va. June 28, 2012)
("Common interest assertions involving government agencies, however, must be carefully scrutinized. See Hunton & Williams v. U.S. Dep't of Justice, 590 F.3d 272, 274 (4th Cir. 2010). 'For the doctrine to apply, an agency must show that it had agreed to help another party prevail on its legal claims at the time of the communications at issue because doing so was in the public interest.'")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA

Chapter: 20.7
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("Pinnacle, indefatigable in its advocacy, next argues that the only public interest identified is the Army's financial interest, which is not sufficient for purposes of the common interest doctrine. This, too, fails. First, it is entirely appropriate for the Army's financial interest to be the basis of the common interest doctrine (footnote omitted). Even if this were not appropriate, common sense and the entirety of the record reveal other interests as well, such as the importance both to soldiers' lives and the Army's reputation of having well-run family housing programs. The serious allegations of Pinnacle's fraud and mismanagement demonstrate precisely why the Army determined it was in the public interest to consent to both the Georgia state action and replacing Pinnacle as property manager.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 20.7
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 877 (E.D. Va. 2012)
("What is relevant is the Army's determination, clearly demonstrated in this record, that based on the evidence Clark adduced, supporting Clark in its legal effort to replace Pinnacle is in the Army's and thus in the public interest. While this determination arose in the context of the Army's contractually required consent, it is apparent that this consent was not merely the Army's indifferent permission for Clark and Pinnacle to wrangle over profits. Rather, the Army determined replacing Pinnacle is in the interest of the soldiers, the Army, and thus, the public. . . . Importantly, the Fourth Circuit has held that even if Clark is motivated by profits, while the Army is motivated by the public interest, they still share a 'common and unitary' interest if they both seek the same result, in this case success in the Georgia state action and removal of Pinnacle as property manager at Fort Benning and Fort Belvoir. See Hunton & Williams, 590 F.3d at 282." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 20.7
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 875 (E.D. Va. 2012)
(holding that a private company and the Army could enter into a common interest agreement; "[F]or the common interest doctrine to apply, an agency must demonstrate that, at the time of the communication in question, it had decided to support an outside party in a legal matter, and that doing so was in the public interest. . . . In this matter, the Army has demonstrated (i) that it shares a common interest with Clark in connection with the Georgia state action and Clark's legal efforts to replace Pinnacle as property manager, and (ii) that it has determined that replacing Pinnacle is in the public interest.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13
Comment:

key case


Chapter: 20.7
Case Name: BSP Software, LLC v. Motio, Inc., No. 12 C 2100, 2013 U.S. Dist. LEXIS 95511 (N.D. Ill. July 9, 2011)
(rejecting the functional equivalent doctrine; "To be sure, disclosure to a third party does not waive the privilege where the parties are linked by a common interest. [Beneficial Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 215 (N.D. Ill. 2001)] However, for that exception to waiver to apply, BSP would have to show that it had a common interest with the advisory board that 'relate[s] to a litigation interest, and not merely a common business interest.' Id. at 216. BSP's submissions establish precisely the contrary. BSP went to the advisory board to get its business advice.")

Case Date Jurisdiction State Cite Checked
2011-07-09 Federal IL B 4/14

Chapter: 20.7
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *37 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "In order then for documents and communications shared amongst those who may participate in a joint defense scheme to be considered confidential, there must exist an agreement, though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.7
Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 341 (4th Cir. 2005)
(assessing the right of individual executives to stop their former employer from waiving the privilege that applied to interviews of the executives by the company's in-house and outside lawyers; after rejecting the executives' argument that they were joint clients of the lawyers, the court assessed one of the executive's claim that he had a "common interest agreement" with the company; "For the privilege to apply, the proponent must establish that the parties had 'some common interest about a legal matter.' Sheet Metal Workers Int'l Assoc. v. Sweeney, 29 F.3d 120, 124 (4th Cir. 1994). An employee's cooperation in an internal investigation alone is not sufficient to establish a common interest; rather 'some form of joint strategy is necessary'"(citation omitted); noting that uncontradicted affidavits submitted by the company's in-house lawyer indicated that "at the time of the interviews, AOL had not entered into an agreement with Wakeford regarding their joint defense. There is no evidence showing that AOL and Wakeford were pursuing a common legal strategy before December 2001. During the March-June 2001 interviews, AOL was in the early stages of its internal investigation; there is no evidence that the investigating attorneys' interviews with Wakeford were for the purpose of formulating a joint defense."; concluding that "[b]ecause there is no evidence that Wakeford and AOL shared a common interest before December 2001, we find no error in the district court's conclusion that Wakeford had no joint defense privilege before that time"), cert. denied, 126 S. Ct. 1114 (2006)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal

Chapter: 20.7
Case Name: United States v. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996)
(finding that the "common interest rule" did not apply because the company and the employee did not share a "common interest about a legal matter"; although "development of defenses [to] allegations" about the employee could have preserved the company's reputation, "the preservation of one's reputation is not a legal matter"), cert. denied, 520 U.S. 1239 (1997)

Case Date Jurisdiction State Cite Checked
1996-01-01 Federal

Chapter: 20.7
Case Name: Hicks v. Commonwealth, 439 S.E.2d 414, 416 (Va. Ct. App. 1994)
("Whether an action is civil or criminal, potential or actual, whether the commonly interested parties are plaintiffs or defendants, persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims."; finding that the common interest doctrine protected communications between the criminal defendant and a lawyer for an accomplice who was a potential co-defendant)

Case Date Jurisdiction State Cite Checked
1994-01-01 State VA
Comment:

key case


Chapter: 20.7
Case Name: In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207, 1212 (E.D. Va. 1990)
("Movant invites the Court to extend the joint defense privilege to include entities who are not parties to the litigation but who merely have a pecuniary interest in it. The Court declines this invitation. Movant cites no apposite or persuasive authority for this novel argument. Moreover, no good reason in principle exists for doing so. To extend the joint defense privilege to non-parties simply because they are financially interested in the litigation stretches the rationale for the privilege beyond its reach."), aff'd in part and vacated in part on other grounds, 902 F.2d 244 (4th Cir. 1990)

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal VA
Comment:

key case


Chapter: 20.9
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 842, 876 (E.D. Va. 2012)
(finding that the Army and the private company could enter into a common interest agreement; "[T]he Fourth Circuit has found the common interest doctrine applied where only one entity was a named party in the relevant civil litigation. See In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990). In any event, although the Army is not a named party in the Georgia state action, it is a 49% owner of one of the plaintiffs, and thus clearly can be considered a party in interest with respect to that litigation.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 2/14

Chapter: 20.12
Case Name: In re Symbol Technologies, Inc. Sec. Litig., CV 05-3923 (DRH) (AKT), 2016 U.S. Dist. LEXIS 139200 (E.D.N.Y. Sept. 30, 2016)
(the work product doctrine protected documents created during a company's investigation of accounting problems; also holding that disclosure to the SEC did not waive the work product doctrine, because the SEC and the company had a common interest in complying with an earlier consent decree; "Although reasonable minds may differ, based on the facts of the instant case, the Court finds that Symbol and the SEC shared a common interest in ensuring that the terms of the consent judgment were adhered to and that Symbol's accounting practices, notwithstanding the third quarter revenue overstatement, were sound. This common interest -- which squarely aligns with the SEC's mandate of ensuring compliance with the nation's securities laws -- therefore overshadows any possible adversarial relationship that could be deemed to exist based upon the SEC's pending informal inquiry at the time. See id. (finding that despite the ongoing inquiry by the SEC into defendant's accounting practices, disclosure of privileged materials to the SEC did not waive work product privilege where defendant and SEC shared a common interest in ensuring that defendant's 'financial and accounting practices [were] 'clean as a hounds tooth."; "Having determined that the relationship between Symbol and the SEC was predominantly non-adversarial, the Court turns to whether the disclosure nevertheless "'substantially' or 'materially' increase[d] the likelihood that an adversary w[ould] obtain the information.' Bank of America, N.A., 212 F.R.D. at 170. As stated above, in the wake of Steinhardt [In re Steinhardt Partners, L.P., 9 F.3d at 236], 'district courts within the Second Circuit [ ] give the existence of confidentiality agreements weighty consideration in rendering selective waiver decisions."; "In the instant case, the record establishes that on November 19, 2002, Symbol entered into a confidentiality agreement with both the SEC and U.S. Attorney's Office whereby Symbol agreed to produce certain confidential documents with the understanding that Symbol did 'not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.'"; "Further, although Plaintiff makes a perfunctory waiver argument with respect to any disclosures made to the Independent Examiner, the Court finds Plaintiff's position unavailing."; "Based upon the evidence in the record, and in the absence of any briefing by the parties, the Court finds that although labeled as 'independent,' the examiner was, for all practical purposes, acting as an agent for the government with the primary purpose of ensuring that Symbol complied with the terms and conditions of the deferred prosecution agreement as well as the Final Consent Judgment.")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 20.12
Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "The Court does not find that the disclosures were made for a strategic, offensive purpose, and does not foresee them creating an unfair advantage in this litigation. The scope of waiver relating to Plaintiff's counsel is, therefore, limited to communications actually disclosed between Plaintiff and Bellao [third party].")

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal FL

Chapter: 20.16
Case Name: Washington Coalition for Open Government v. Pierce County, No. 50718-8-II, 2019 Wash. App. LEXIS 392 (Wash. Ct. App. Feb. 20, 2019)
May 15, 2019 (PRIVILEGE POINTS)

"Courts Assess The Common Interest Doctrine's Applicability To Work Product: Part II"

Last week's Privilege Point described a case erroneously applying the demanding common interest doctrine to companies' sharing of work product. In stark contrast to the privilege, work product protection holders waive that robust protection only by disclosing it to adversaries or conduits to adversaries. Fortunately most courts understand that friendly litigants or would-be litigants (represented or not) may thus safely share work product without waiving that hardy protection.

In Washington Coalition for Open Government v. Pierce County, No. 50718-8-II, 2019 Wash. App. LEXIS 392 (Wash. Ct. App. Feb. 20, 2019), the court properly rejected plaintiffs' attempt to apply the common interest doctrine to work product disclosures. The court explained that plaintiff "confuses waiver under the work product doctrine with waiver of attorney-client privilege." Id. at *13. The court correctly noted that plaintiff "fails to show that the County's disclosure of work product [to friendly third parties] created a significant likelihood that an adversary or potential adversary . . . would obtain these documents." Id. at *14. The court then noted that plaintiff relied on a 2012 Ninth Circuit case "to argue that a shared desire for the same outcome in a legal matter was insufficient to create a common interest agreement between the County [and friendly third parties]." Id. The court bluntly explained that the Ninth Circuit case was "inapplicable because that case involved waiver of the attorney-client privilege, not the work product doctrine." Id. at *15.

Courts' confusion about the common interest doctrine's inapplicability to work product can result in seriously flawed decisions. Ironically, most courts' limitation of the common interest doctrine's reach to participants who are in or anticipate litigation means that many such participants do not need to rely on the demanding common interest doctrine – because they are sharing work product, not fragile privileged communications.

Case Date Jurisdiction State Cite Checked
2019-02-20 State WA
Comment:

key case


Chapter: 20.16
Case Name: Burroughs Diesel, Inc. v. Travelers Indemnity Co. of America, Civ. A. No. 2:18-cv-48-KS-MTP, 2019 U.S. Dist. LEXIS 24190, at *13 (S.D. Miss. Feb. 14, 2019)
May 8, 2019 (PRIVILEGE POINTS)

"Courts Assess The Common Interest Doctrine's Applicability To Work Product: Part I"

The common interest doctrine occasionally allows separately represented clients to avoid waiving their fragile privilege protection when sharing privileged communications while cooperating in a common legal strategy. Many of those efforts fail, because a court finds that the participants' interests were primarily business-driven rather than legal, were not sufficiently aligned, etc. These frequent failures reflect the attorney-client privilege's fragility.

Unfortunately, some courts erroneously demand the same strict requirements when companies or individuals share documents protected by the much more robust work product doctrine. In Burroughs Diesel, Inc. v. Travelers Indemnity Co. of America, the court acknowledged that it "has not found a case considering Mississippi law on common-interest privilege in the realm of work product, but it has been addressed in the context of attorney-client privilege." Civ. A. No. 2:18-cv-48-KS-MTP, 2019 U.S. Dist. LEXIS 24190, at *13 (S.D. Miss. Feb. 14, 2019). The court then quickly concluded that the companies sharing work product could not meet the exacting common interest standard under Mississippi law, and "have not provided any binding authority to support [their] position" . . . "[n]o matter how expansive or overlapping [their] business interests are." Id. at *14.

Perhaps the reason the court did not find any cases considering the common interest doctrine's application "in the realm of work product" is because it does not apply there. Next week's Privilege Point will discuss a decision that correctly recognized this critical point.

Case Date Jurisdiction State Cite Checked
2019-02-14 Federal MS
Comment:

key case


Chapter: 20.201
Case Name: Grimsley v. The Manitowoc Co., Inc., Civ. No. 1:15-CV-1275, 2017 U.S. Dist. LEXIS 108500 (M.D. Pa. July 13, 2017)
(finding that there was no common interest between an insured and a worker's compensation insurance carrier; "Here, we reject Grove's broad assertion that, by virtue of its purported insured-insurer relationship with Sentry, Grove's attorneys 'jointly represent[] or act[] for the common interest of" both Sentry and Grove, and that Grove and its insurer jointly hold attorney-client privilege 'as to any third-part[ies].'. . . We initially note that it is unclear whether Grove relies on the 'common interest' or 'co-client' doctrine to assert attorney-client privilege, as citations in its briefing appear to conflate the doctrines. (See id.). In any event, Grove provides little information, beyond asserting that it is insured by Sentry, as to how either doctrine applies in this case. For instance, it is not apparent whether Sentry and Grove are represented by separate counsel, a requirement for application of the common interest doctrine, or by the same counsel, which is indicative of the co-client doctrine."; "Moreover, as to the common interest doctrine, we note that Sentry is not a party to the instant action and has not denied workers' compensation coverage with respect to the Incident. Consequently, Grove has not shown with any particularity how Sentry is involved in similar or related legal proceedings so as to share common legal interests with Grove in mounting a defense in this case. . . . Grove has also not shown how it is Sentry's co-client, as there is no indication that Sentry is paying for Grove's counsel, and Sentry's only apparent interest in this litigation is to generally minimize its insured's exposure to liability.")

Case Date Jurisdiction State Cite Checked
2017-07-13 Federal PA

Chapter: 20.201
Case Name: Polylok, Inc. v. Bear Onsite, LLC, Civ. A. No. 3:12-CV-00535-DJH-CHL, 2017 U.S. Dist. LEXIS 41960 (W.D. Ky. March 23, 2017)
(inexplicably confusing a common interest agreement and a joint representation; "The main thrust of the Hornback Defendants' argument is that the two parties to the communication are commonly represented, that the Plaintiffs knew that the parties were commonly represented, and that statements made regarding this action between Terry and Hornback would be privileged. The Hornback Defendants believe that with these facts, '[there] simply could be no other way.'. . . It is true that communications between Hornback and Terry may be privileged if those communications were in furtherance of a common joint defense strategy. It is also true that joint-defense agreements may be oral. However, the Hornback Defendants forget that they have the burden to establish the applicability of the privilege. . . . The Hornback Defendants, by merely claiming that an oral joint defense agreement was in effect and stating that Plaintiffs knew of the single representation between the co-parties, have not made a sufficient argument to show that the redacted portions of the text messages were privileged. Furthermore, the unredacted portions of the text messages strongly suggest that the communications were not in furtherance of a common defense strategy. Therefore, the Court rejects the Hornback Defendants' assertion that counsel's 'statement that she believed there was a joint defense agreement should have been more than sufficient' to satisfy the obligation to produce a privilege log.")

Case Date Jurisdiction State Cite Checked
2017-03-23 Federal KY

Chapter: 20.201
Case Name: Au New Haven, LLC v. YKK Corp., No. 15-CV-03411 (GHW)(SN), 2016 U.S. Dist. LEXIS 160602, at *20 (S.D.N.Y. Nov. 18, 2016)
January 18, 2017 (PRIVILEGE POINT)

"Southern District of New York Issues a Troublesome Corporate Privilege Case"

Most courts applying privilege principles automatically treat wholly-owned subsidiaries' employees as if they were the parent's employees. However, occasionally courts take a narrower view.

In Au New Haven, LLC v. YKK Corp., Judge Netburn rejected defendants' argument that "entities under common ownership sharing privileged information are always considered to be a single entity for the purpose of attorney-client privilege" protection. No. 15-CV-03411 (GHW)(SN), 2016 U.S. Dist. LEXIS 160602, at *20 (S.D.N.Y. Nov. 18, 2016). Instead, the court surprisingly held that "[e]ntities that are under common ownership must still demonstrate that [the common interest doctrine] applies, such as by making a showing that a common attorney was representing both corporate entities or that they otherwise shared a common legal interest." Id. at *10. The court ultimately found the privilege applicable.

Although almost by definition a wholly-owned subsidiary's legal interest must align with its parent's legal interest, it is unsettling that a prestigious court would apply the common interest doctrine in such a setting.

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY
Comment:

key case


Chapter: 20.201
Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiffs brief is not entirely clear regarding how the common interest doctrine would apply in this case. If Plaintiff is simply arguing that Ms. Jasti has a common interest with the Plaintiff because it is important to both of them that Plaintiff prevail in the instant law suit, this Court has found no case that bends the common interest doctrine to such an extreme definition. If the argument is that Ms. Jasti and Plaintiff were both represented by their children and Mr. Rock, the common interest doctrine would not apply because Ms. Jasti and Plaintiff were not represented by different lawyers. It is possible that the joint lawyer doctrine might apply. . . . However, Plaintiff has not presented any argument on that doctrine, and, therefore, has not met his burden to prove that the privilege applies. As such, the Court rejects the Plaintiff's argument that the common interest doctrine applies.")

Case Date Jurisdiction State Cite Checked
2016-10-20 Federal IL

Chapter: 20.201
Case Name: First South Bank v. Fifth Third Bank, N.A., Civ. A. No. 7:10-2097-MGL, 2013 U.S. Dist. LEXIS 62238, at *20, *26-27, *27-28 (D.S.C. May 1, 2013)
(holding that a loan participation agreement did not create a joint representation by the lead lender's lawyer of the other participating banks; pointing to communication as evidence that there was no joint representation; "The extent of Plaintiff's beneficial interest in the Loan Documents and Loan related documents is set forth in and limited by the Participation Agreement -- a contract that does not explicitly or implicitly eradicate either party's right to counsel, or their attorney-client relationships, or lawful privileges and protections that apply to documents related to the Loan."; "[A] presupposition of separate privileges is required in order for the joint defense privilege to have any meaning or import and it is the agreement that allows parties with a common interest to communicate with their respective attorneys and with each other to prosecute and defend claims without waiving privileges and protections. . . . There would in fact, be no need for this type of special confidentiality agreement to maintain and preserve privileges, if McGuire Woods was representing both Fifth Third and First South in the underlying litigation matters. Plaintiff cannot have it both ways. Plaintiff's reading would strip the entire agreement of any meaning, discount the unique nature of participation agreements, and ignore the importance of separate representation and conflicts of interests of counsel."; "The Participation Agreement and the Litigation Agreement work in tandem to take into account the unique nature of participation agreements between banks, and to allow select information to be exchanged between the two banks while preserving applicable privileges and protections. Thus, the court finds no basis for Plaintiff's claims that Defendant compromised or waived its rights to assert privileges and protections over the subject documents.")

Case Date Jurisdiction State Cite Checked
2013-05-01 Federal SC B 12/13

Chapter: 20.201
Case Name: William F. Shea, LLC v. Bonutti Research, Inc., Case No. 2:10-cv-615, 2013 U.S. Dist. LEXIS 48819, at *5-6 (S.D. Ohio Apr. 4, 2013)
(holding that a patent owner and its assignee could enter into a common interest agreement; "But BRI [patent holder] relies on the so-called 'common interest' doctrine, which operates as an exception to the general rule that disclosure of privileged materials to a third party waives the privilege. . . . This exception typically arises when parties 'are either represented by the same attorney or are individually represented, but have the same goal in litigation.'. . . Under such circumstances, the parties may freely share otherwise privileged communications with each other without waiving the privilege.")

Case Date Jurisdiction State Cite Checked
2013-04-04 Federal OH B 3/14

Chapter: 20.201
Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *8 (Bankr. E.D. Va. May 11, 2012)
(analyzing the ramifications of a law firm jointly representing a company and two of its executives in a derivative case; noting that the company later declared bankruptcy, and that the bankruptcy trustee moved to compel the turnover of documents the law firm created during the joint representation; inexplicably confusing the joint defense/common interest doctrine and the joint representation situation; "The common interest privilege, also known as the joint defense privilege, is universally accepted."; "The Restatement (Third) of Law Governing Lawyers states the rule as follows: 'Unless the co-clients have agreed otherwise, a communication described in Subsection (1) [communication that otherwise qualifies as privileged] is not privileged as between the co-clients in a subsequent adverse proceeding between them.'")

Case Date Jurisdiction State Cite Checked
2012-05-11 Federal VA B 4/13

Chapter: 20.202
Case Name: Blattman v. Scaramellino, No. 17-1589, 2018 U.S. App. LEXIS 14252 (1st Cir. App. May 17, 2018)
(analyzing the difference between a joint representation and a common interest agreement, but finding that neither one existed; "'Co-client representations must . . . be distinguished from situations in which a lawyer represents a single client, but another person with allied interests cooperates with the client and the client's lawyer.' See Restatement (Third) of the Law Governing Lawyers § 75 cmt. c (2000). But, even if we assume that the record could supportably establish that Scaramellino was also represented by Blattman's lawyers, 'clients of the same lawyer who share a common interest are not necessarily co-clients,' as they may 'have merely entered concurrent but separate representations.'")

Case Date Jurisdiction State Cite Checked
2018-05-17 Federal

Chapter: 20.202
Case Name: United States v. Hallinan, Crim. A. No. 16-130-01,-02, 2017 U.S. Dist. LEXIS 199490 (E.D. Pa. Dec. 5, 2017)
(using the term "common interest" to describe a joint representation, and using the term "community of interests" in describing what most courts call a common interest arrangement; "There are two separate privileges that allow co-defendants and their attorneys to share information without waiving the attorney-client privilege. The 'common interest' or 'co-client' privilege applies where two or more clients are jointly represented by the same attorney. In that circumstance, 'a communication of either co-client that . . . relates to matters of common interest is privileged as against third persons.'. . . The 'community-of-interest' or 'joint-defense' privilege, on the other hand, applies where co-defendants are represented by different attorneys, and 'allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others.'")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal PA

Chapter: 20.202
Case Name: Robinson Mechanical Contractors Inc. v. PTC Group Holding Corp., Case No. 1:15-CV-77 SNLJ, 2017 U.S. Dist. LEXIS 72636 (E.D. Mo. May 12, 2017)
(holding that a parent and a wholly-owned subsidiary were jointly represented by the same lawyer; "Here, PTC Group [parent of now-dissolved former subsidiary Seamless, possessing Seamless's documents] claims that it can independently assert the attorney-client privilege shared by it and Seamless in the alleged joint-client representation. This is so because, as PTC Group alleges, essentially at all times and for all matters relevant to this action, PTC Group and Seamless shared a common interest and shared in-house counsel, making them joint-clients. This Court agrees that PTC Group may assert the joint-client privilege, on behalf of itself and Seamless, for documents that otherwise qualify as privileged and relate to matters of common interest of the two corporations. For the same reasons, PTC Group can assert Seamless' work product doctrine privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-12 Federal MO
Comment:

key case


Chapter: 20.202
Case Name: Polylok, Inc. v. Bear Onsite, LLC, Civ. A. No. 3:12-CV-00535-DJH-CHL, 2017 U.S. Dist. LEXIS 41960 (W.D. Ky. March 23, 2017)
(inexplicably confusing a common interest agreement and a joint representation; "The main thrust of the Hornback Defendants' argument is that the two parties to the communication are commonly represented, that the Plaintiffs knew that the parties were commonly represented, and that statements made regarding this action between Terry and Hornback would be privileged. The Hornback Defendants believe that with these facts, '[there] simply could be no other way.'. . . It is true that communications between Hornback and Terry may be privileged if those communications were in furtherance of a common joint defense strategy. It is also true that joint-defense agreements may be oral. However, the Hornback Defendants forget that they have the burden to establish the applicability of the privilege. . . . The Hornback Defendants, by merely claiming that an oral joint defense agreement was in effect and stating that Plaintiffs knew of the single representation between the co-parties, have not made a sufficient argument to show that the redacted portions of the text messages were privileged. Furthermore, the unredacted portions of the text messages strongly suggest that the communications were not in furtherance of a common defense strategy. Therefore, the Court rejects the Hornback Defendants' assertion that counsel's 'statement that she believed there was a joint defense agreement should have been more than sufficient' to satisfy the obligation to produce a privilege log.")

Case Date Jurisdiction State Cite Checked
2017-03-23 Federal KY

Chapter: 20.202
Case Name: Polylok, Inc. v. Bear Onsite, LLC, Civ. A. No. 3:12-CV-00535-DJH-CHL, 2017 U.S. Dist. LEXIS 41960 (W.D. Ky. March 23, 2017)
(inexplicably confusing a joint defense agreement and a joint representation; "[T]he Court notes that the Hornback Defendants characterize the principles of the 'common-interest rule' and 'joint-defense agreement' as interchangeable, and refer to both principles numerous times throughout their response. . . . In fact, courts within the Sixth Circuit have characterized these privileges separately."; "The common-interest rule applies 'where the parties are represented by separate attorneys but share a common legal interest.'"; "On the other hand, the 'joint-defense' doctrine is potentially applicable in the context of this matter. A 'joint-defense' agreement, also called the co-client privilege, allows communications between one client (e.g., a defendant) and his attorney to be shared with a co-defendant without waiving the privilege where both are represented by the same attorney.'")

Case Date Jurisdiction State Cite Checked
2017-03-23 Federal KY

Chapter: 20.202
Case Name: Polylok, Inc. v. Bear Onsite, LLC, Civ. A. No. 3:12-CV-00535-DJH-CHL, 2017 U.S. Dist. LEXIS 41960 (W.D. Ky. March 23, 2017)
(inexplicably confusing a common interest agreement and a joint representation; "The main thrust of the Hornback Defendants' argument is that the two parties to the communication are commonly represented, that the Plaintiffs knew that the parties were commonly represented, and that statements made regarding this action between Terry and Hornback would be privileged. The Hornback Defendants believe that with these facts, '[there] simply could be no other way.'. . . It is true that communications between Hornback and Terry may be privileged if those communications were in furtherance of a common joint defense strategy. It is also true that joint-defense agreements may be oral. However, the Hornback Defendants forget that they have the burden to establish the applicability of the privilege. . . . The Hornback Defendants, by merely claiming that an oral joint defense agreement was in effect and stating that Plaintiffs knew of the single representation between the co-parties, have not made a sufficient argument to show that the redacted portions of the text messages were privileged. Furthermore, the unredacted portions of the text messages strongly suggest that the communications were not in furtherance of a common defense strategy. Therefore, the Court rejects the Hornback Defendants' assertion that counsel's 'statement that she believed there was a joint defense agreement should have been more than sufficient' to satisfy the obligation to produce a privilege log.")

Case Date Jurisdiction State Cite Checked
2017-03-23 Federal KY

Chapter: 20.202
Case Name: DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016)
February 1, 2017 (PRIVILEGE POINT)

"An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part II"

Last week's Privilege Point described an in-house counsel's vigorous argument that she had represented her employer/client in a common interest agreement with a hospital in jointly prosecuting patents -- rather than having jointly represented both her employer/client and the hospital. DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016).

After reciting facts that could have evidenced either a common interest agreement or a joint representation, the court explained why it agreed with the Hospital that there had been a joint representation: "[T]he evidence does not show that DePuy's in-house counsel . . . provided any kind of disclaimer about representation when answering the Hospital's questions with legal information or consequence regarding the patent prosecution." Id. at *12-13 (emphasis added). The court then gave the punchline. Because DePuy's in-house counsel had jointly represented DePuy and the Hospital, the former joint client Hospital could discover "DePuy's internal communications related to the [patent] prosecution." Id. at *13 (emphasis added). Thus, the Hospital's understandable desire to discover these internal DePuy communications had led it to "vociferously contend[] that it believed that DePuy's in-house counsel was acting on its behalf." Id. at *12.

If common interest participants later become litigation adversaries, privilege protection evaporates for any communications they have shared, but remains for each participant's internal communications with its own lawyer. In a joint representation, such later adversity normally allows any former joint client to discover all of their joint lawyer's communications on that matter with any jointly represented clients. In-house and outside counsel should remember this key distinction, and explicitly define any relationship if there might be confusion – including providing socially awkward but legally significant disclaimers of a joint representation.

Case Date Jurisdiction State Cite Checked
2016-12-01 Federal IN
Comment:

key case


Chapter: 20.202
Case Name: DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016)
January 25, 2017 (PRIVILEGE POINT)

"An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part I"

Common interest agreements and joint representations share many characteristics. Both types of arrangements involve lawyers engaging in protected communications with multiple clients. But they are structurally distinct. In common interest agreements, separately represented clients cooperate in a common legal strategy. In a joint representation, the same lawyers represent several clients on the same matter. As long as everything rolls along smoothly, the structural difference has few privilege consequences. But adversity reveals a key privilege distinction.

In DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016), plaintiff DePuy and defendant Hospital had worked together on patent prosecutions – but later become litigation adversaries. DePuy resisted the Hospital's attempt to discover communications to and from DePuy's in-house counsel. The in-house counsel claimed that DePuy and the Hospital had only entered into a common interest agreement – noting that O'Melveny & Myers had acted as patent "prosecution counsel" on behalf of both companies. In contrast, the Hospital "claim[ed] that DePuy's in-house counsel jointly represented both parties." Id. at *4. The court recited facts that could have proven either a common interest agreement or a joint representation: DePuy and the Hospital shared confidential information and cooperated on a common legal strategy; DePuy's in-house counsel communicated with and gave direction to O'Melveny, etc. But the court ultimately concluded that DePuy's in-house counsel had jointly represented DePuy and the Hospital -- rather than represented just DePuy in a common interest arrangement with the separately represented Hospital.

Given the privilege implication similarities between a common interest agreement and a joint representation, one might wonder why DePuy's in-house counsel argued so strenuously against the latter. Next week's Privilege Point will explain the court's key reason for finding such a joint representation, and its frightening implication.

Case Date Jurisdiction State Cite Checked
2016-12-01 Federal IN
Comment:

key case


Chapter: 20.202
Case Name: DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016)
February 1, 2017 (PRIVILEGE POINT)

"An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part II"

Last week's Privilege Point described an in-house counsel's vigorous argument that she had represented her employer/client in a common interest agreement with a hospital in jointly prosecuting patents -- rather than having jointly represented both her employer/client and the hospital. DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016).

After reciting facts that could have evidenced either a common interest agreement or a joint representation, the court explained why it agreed with the Hospital that there had been a joint representation: "[T]he evidence does not show that DePuy's in-house counsel . . . provided any kind of disclaimer about representation when answering the Hospital's questions with legal information or consequence regarding the patent prosecution." Id. at *12-13 (emphasis added). The court then gave the punchline. Because DePuy's in-house counsel had jointly represented DePuy and the Hospital, the former joint client Hospital could discover "DePuy's internal communications related to the [patent] prosecution." Id. at *13 (emphasis added). Thus, the Hospital's understandable desire to discover these internal DePuy communications had led it to "vociferously contend[] that it believed that DePuy's in-house counsel was acting on its behalf." Id. at *12.

If common interest participants later become litigation adversaries, privilege protection evaporates for any communications they have shared, but remains for each participant's internal communications with its own lawyer. In a joint representation, such later adversity normally allows any former joint client to discover all of their joint lawyer's communications on that matter with any jointly represented clients. In-house and outside counsel should remember this key distinction, and explicitly define any relationship if there might be confusion – including providing socially awkward but legally significant disclaimers of a joint representation.

Case Date Jurisdiction State Cite Checked
2016-12-01 Federal IN
Comment:

key case


Chapter: 20.202
Case Name: Au New Haven, LLC v. YKK Corp., No. 15-CV-03411 (GHW)(SN), 2016 U.S. Dist. LEXIS 160602, at *20 (S.D.N.Y. Nov. 18, 2016)
January 18, 2017 (PRIVILEGE POINT)

"Southern District of New York Issues a Troublesome Corporate Privilege Case"

Most courts applying privilege principles automatically treat wholly-owned subsidiaries' employees as if they were the parent's employees. However, occasionally courts take a narrower view.

In Au New Haven, LLC v. YKK Corp., Judge Netburn rejected defendants' argument that "entities under common ownership sharing privileged information are always considered to be a single entity for the purpose of attorney-client privilege" protection. No. 15-CV-03411 (GHW)(SN), 2016 U.S. Dist. LEXIS 160602, at *20 (S.D.N.Y. Nov. 18, 2016). Instead, the court surprisingly held that "[e]ntities that are under common ownership must still demonstrate that [the common interest doctrine] applies, such as by making a showing that a common attorney was representing both corporate entities or that they otherwise shared a common legal interest." Id. at *10. The court ultimately found the privilege applicable.

Although almost by definition a wholly-owned subsidiary's legal interest must align with its parent's legal interest, it is unsettling that a prestigious court would apply the common interest doctrine in such a setting.

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY
Comment:

key case


Chapter: 20.202
Case Name: CGC Holding Co., LLC v. Hutchens, Civ. A. No. 11-cv-01012-RBJ-KLM, 2016 U.S. Dist. LEXIS 6523, at *10 (D. Colo. Jan. 20, 2016)
(analyzing a situation in which plaintiff said that the defendant's law firm helped its client swindle the plaintiff; denying privilege and work product protection for communications between the law firm's investigator and the law firm's former client, despite a common interest claim; "In federal court, the phrase 'joint defense privilege' has frequently been used to refer to two closely-related, but nevertheless separate, legal privileges known as the 'joint client privilege' and the 'common interest rule privilege.' 'The "joint client privilege' applies when clients or parties share the same lawyer; the 'common interest rule privilege' applies 'when parties with separate lawyers consult together under the guise of common interest or defense.' . . . The courts frequently combine the separate situations addressed by the joint client privilege and the common interest rule privilege into a single concept most frequently referred to as the 'joint defense privilege.'")

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal CO B 7/16

Chapter: 20.202
Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(analyzing the privilege implications of the same lawyer representing two plaintiffs suing the same defendant company on different claims (one involving wages and one involving a contract); inexplicably holding that the privilege did not apply despite the joint representation, because of the different nature of the clients' claims; "When, as here, parties are represented by the same counsel, the joint lawyer doctrine applies. . . . By contrast Illinois law appears to include both exemptions under the heading of the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2015-06-18 Federal IL

Chapter: 20.202
Case Name: Bauer v. County of Saginaw, Case No. 14-cv-11158, 2015 U.S. Dist. LEXIS 39098 (E.D. Mich. March 27, 2015)
(analyzing the common interest doctrine; "The exception most often arises when the parties are either represented by the same attorney or are individually represented, but have the same goal in litigations.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal MI

Chapter: 20.202
Case Name: Berndt v. Snyder, Civ. No. 13-cv-368-SM, 2014 U.S. Dist. LEXIS 170098 (D.N.H. Dec. 9, 2014)
("'This exception is sometimes referred to as the 'common-interest' exception. To be consistent with the parties' filings, the court will refer to the exception as the 'joint client' exception.'")

Case Date Jurisdiction State Cite Checked
2014-12-09 Federal NH

Chapter: 20.202
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "The defendants maintain a joint representation privilege applies. Joint representation refers to situations where two parties share a common attorney for representation in a particular matter. Joint representation, for the purposes of this opinion, refers only to multiple clients represented by a single attorney or firm in a particular matter. Because both the City and HSWA are independently represented, it is not necessary to analyze a joint representation privilege.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY

Chapter: 20.202
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Even if the interests were 'identical, legal interests,' the doctrine is not applicable here. First, there is only one lawyer, not multiple lawyers. Second, many of the emails do not involve the transmission of 'otherwise privileged' communications either from one of them to Ms. Caporusso or from Ms. Caporusso to either or both of them. That is, they do not seek legal advice from Ms. Caporusso; they are merely reflecting on past events. Merely copying Ms. Caporusso on their emails or showing her as an additional addressee does not make their communications 'otherwise privileged.'")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.202
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "The 'common interest doctrine' generally involves individuals represented by separate counsel, not, as here, by the same lawyer.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.202
Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *14 (S.D. Cal. Mar. 6, 2014)
(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "Since Mr. Diez Barroso [Director of Neology] was not individually represented by counsel, Defendant can not [sic] establish the applicability of the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal CA B 8/14

Chapter: 20.202
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *7 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "The common interest doctrine also can be applicable to communications between a party and a non-party, including communications between a government agency and aggrieved individuals on whose behalf the government brings suit. For example, courts have applied the common interest doctrine in cases involving the Fair Housing Act and Equal Employment Opportunity Commission, despite the fact that the aggrieved persons were not represented by counsel nor were the individuals parties to the lawsuits in question.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 6/14

Chapter: 20.202
Case Name: Ford Motor Co. v. Mich. Consol. Gas Co., Civ. A. No. 08-CV-13503, 2013 U.S. Dist. LEXIS 138693, at *14-15, *16-17 (E.D. Mich. Sept. 27, 2013)
(holding that attorney-client privilege protected communications between plaintiff Ford and its consultant, but did not protect documents shared between them, because they were not primarily related to legal advice; "'The joint-defense doctrine, also called the co-client privilege, allows communications between one client (e.g., a defendant) and his attorney to be shared with a co-defendant without waiving the privilege where both are represented by the same attorney.'" (citation omitted); "Plaintiffs contend that much of the communication between Ford and Severstal [plaintiff] was made with the common legal interest of apportioning and recovering costs related to the CACO [Corrective Action Consent Order]. Plaintiffs claim that this protection extends back to 1989, when Ford agreed to work with Rouge Steel (Severstal's predecessor in interest) toward the cleanup of the SRA [Schafer Road Area]. Plaintiffs are correct. Any communication between Ford and Severstal is protected by the common-interest privilege, provided that such communication contains privileged information and that Ford and Severstal's legal interest was identical.")

Case Date Jurisdiction State Cite Checked
2013-09-27 Federal MI B 4/14

Chapter: 20.202
Case Name: United States v. Okun, 281 F. App'x 228, 231-32 (4th Cir. 2008) (unpublished opinion)
(holding that a company's sole shareholder and CEO could not quash a subpoena directed at the company, after the company waived any privilege; concluding that the individual could not reasonably have believed that he was also represented by the company's lawyer; also rejecting the individual's common interest doctrine argument because he "failed to establish that he and IPA [company] were represented by separate legal counsel engaged in a joint strategy. Moreover, '[a]n employee's cooperation in an internal investigation alone is not sufficient to establish a common interest; rather some form of joint strategy is necessary.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal B 6/09; n

Chapter: 20.202
Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 292 (4th Cir. 2004)
("the common interest doctrine applies when two or more parties consult or retain an attorney concerning a legal matter in which they share a common interest")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal Nsvb 11/05

Chapter: 20.302
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; finding one insurance waived its privilege protection by sending the privilege memorandum to another insurance company trying to sort out coverage; but also finding that the disclosure did not waiver any work product protection; "[P]laintiffs argue that at the time that the memorandum was sent by the Gates firm to the carrier's lawyers, RIRRC and ASIC were effectively adversaries -- or at least did not share a sufficiently common legal interest -- because the carrier had not at that time agreed to coverage of the claims against the insured and disputed some of its defense costs. As recounted by plaintiffs, the transmission of the memorandum was made at a time when RIRRC and the carrier were in negotiations through their respective attorneys about coverage and related issues, a characterization that they say is supported by the contemporaneous emails and other documentation, which reflect that the carrier did not agree to substantial coverage until after the transmission of the memorandum."; "'As noted, disclosure of privileged material to someone outside the attorney-client relationship may not trigger a waiver if the disclosure was made to facilitate the attorney's representation of the client. . . . Examples include the use of an interpreter to translate attorney-client communications . . . Or consultation with an accountant or other specialist to assist the attorney in understanding and analyzing complex financial or other technical issues. . . . Defendant makes no showing that this type of purpose triggered the disclosure by the Gates firm to the carrier's counsel. Indeed, the record reflects, as we discuss below, that at the time of the disclosure, RIRRC and the carrier were negotiating to resolve their differences over whether the carrier was obliged to grant indemnity and to reimburse for certain defense costs, and that the proffer of the memorandum to the carrier's lawyer was apparently intended to assist the progress of the negotiations. In short, the disclosure was not intended to facilitate the rendition of legal services by the Gates firm to its client.'"; "The proffered correspondence between the two law firms makes it apparent that at the time RIRRC and ASIC were not pursuing a common legal interest and that the carrier was carefully withholding any concession that it was obliged to provide coverage under the policy. Its original response to the claim of RIRRC, in July 2012, reserved its rights on coverage."; "The foregoing demonstrates that the carrier and RIRRC had conflicting legal interests. RIRRC was seeking maximum coverage for its projected liability and the costs of its defense, whereas the carrier was seeking to minimize its payments. In short, neither its legal nor its commercial interests were identical to, or even similar to, those of RIRRC. Necessarily, then, whatever attorney-client protection may have originally inhered in the Gates memorandum was presumably waived by its disclosure to ACIS.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 20.401
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "We are more inclined toward the modern trend of referring to the doctrine not as a privilege in and of itself -- the privilege is either the attorney-client or work-product privilege -- but as an exception to the rule of waiver that would ordinarily be triggered when attorneys and clients communicate in the presence of, or share information with, third parties; this exception is based on the parties' common interest in defeating a litigation adversary.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.401
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "The 'common interest' or 'joint defense' doctrine is an exception to the general rule that disclosure of protected material to third parties constitutes a waiver. . . . The exception is available regardless of whether litigation has actually commenced.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.401
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "Defendant initially argued that the common-interest doctrine was a 'privilege' that protected many of the withheld documents from disclosure. However, the common-interest rule is a waiver-related doctrine; it is an exception to the general rule that disclosure of an privileged communication results in waiver of the privilege."; "Documents may be withheld on attorney-client privilege or work-product grounds. The common-interest rule allows the withholding party to share that privileged communication with others that are within a community of interest without waiving the underlying privilege.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ

Chapter: 20.401
Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
("The common-interest doctrine, which is not an independent privilege but is an exception to the rule that the attorney-client privilege is waived when privileged information is disclosed to a third party, applies when parties share a substantially identical interest in the subject matter of a legal communication.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA

Chapter: 20.401
Case Name: Sierra Development Co. v. Chartwell Advisory Group, Ltd., Case No. 3:13-CV-0602-RTB (VPC), 2016 U.S. Dist. LEXIS 100290 (D. Nev. Aug. 1, 2016)
(finding that MGM had a common interest with Nevada Resort Association (which apparently was not a party); "The court agrees that this exception to the waiver of the attorney-client privilege applies to those communications MGM and its counsel sent and received from the NRA and its members on a matter of common interest, namely, the food comp dispute.")

Case Date Jurisdiction State Cite Checked
2016-08-01 Federal NV

Chapter: 20.401
Case Name: Sessions v. Sloane, No. COA 15-1095, 2016 N.C. App. LEXIS 770 (N.C. App. July 19, 2016)
("Thus, the joint defense privilege is not actually a separate privilege, but is instead an exception to the general rule that the attorney-client privilege is waived when the client discloses privileged information to a third party.")

Case Date Jurisdiction State Cite Checked
2016-07-19 Federal NC

Chapter: 20.401
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("Mr. Fenkell [Defendant] claims that Alliance, by failing to mention the 'common-interest' exception in its privilege logs, has waived it. . . . Mr. Fenkell does not cite to any authority for this proposition in either his reply brief or in his initial brief. . . . His argument is unconvincing. The 'common-interest' exception is not a 'separate' privilege from the attorney-client privilege."; "The common-interest doctrine is an exception to an exception. The third-party disclosure rule provides that sharing an ostensibly privileged communication with a non-privileged third party waives the privilege. The common-interest exception provides that information shared among those with a common interest in a litigating position does not waive the privilege. The underlying privilege that protects the Alliance documents is the attorney-client privilege. This privilege was asserted in the privilege log. The privilege log did not have to spell out a potentially applicable exception (third-party disclosure) and then mention the applicable rebuttal (the common-interest doctrine). A sanction ordering disclosure of privileged communications is strong medicine, and may 'be imposed only if the District Court finds bad faith, wilfulness, or fault.'")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 20.401
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "The common interest doctrine provides an exception to the general rule that an evidentiary privilege is waived when the party asserting the privilege shares the communication with a third party.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 20.401
Case Name: In re Bank of New York Mellon Corp. Forex Trans. Litig. v. The Bank of New York Mellon, 12-md-2335 (LAK), 11-cv-6969 (LAK), 2014 U.S. Dist. LEXIS 159069 (S.D.N.Y. Nov. 10, 2014)
("The common interest doctrine is a notable exception to this waiver rule. Generally speaking, it brings within the ambit of the attorney-client privilege confidential communications between a client and the client's attorney that are divulged by the client to a third party if the client and the third party are engaged in some form of common enterprise.")

Case Date Jurisdiction State Cite Checked
2014-11-10 Federal NY

Chapter: 20.401
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "The common interest doctrine is not, itself, a species of privilege; it is an exception to the general and familiar rule of waiver, which obtains when a client communicates with his attorney in the presence of a third person or shares privileged communications with a third party.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.401
Case Name: Jemsek v. Jemsek Clinic, P.A. (In re Jemsek Clinic, P.A.), Ch. 11 Case No. 06-31760, Adv. No. 07-03008, 2013 Bankr. LEXIS 3120, at *41 (W.D.N.C. Aug. 2, 2013)
(analyzing the common interest doctrine; "[T]he common interest rule does not create an independent source of privilege or confidentiality.")

Case Date Jurisdiction State Cite Checked
2013-08-02 Federal NC B 4/14

Chapter: 20.401
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *48, *49 (E.D. Wis. July 10, 2013)
("As for the Balsiger-Currey defendants, it is notable that at times they claim 'joint defense' or 'joint defense privilege.' . . . No such independent privilege exists. The joint defense doctrine is simply an exception to the otherwise-applicable rules of waiver when a third-party is present."; "[T]his court's failure to attribute such claims of privilege correctly will not be a basis for reconsideration. Balsiger and Currey are responsible for their own vague references to 'joint defense material.'")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 20.401
Case Name: Mitsui O.S.K. Lines Ltd. v. Seamaster Logistics, Inc., No. 12-mc-00275, 2013 U.S. Dist. LEXIS 9101, at *4-5 (S.D.N.Y. Jan. 18, 2013)
finding that an insurance company and its insured could not rely on a common interest agreement to avoid waiver of the privilege; "The common interest doctrine, also erroneously known as the common interest privilege or the joint defense privilege, is an exception to the general rule that the voluntary disclosure of privileged materials to a third party waives any applicable privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal NY B 7/13

Chapter: 20.401
Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 295-96 (N.Y. App. Div. 2013)
("The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State NY B 3/14

Chapter: 20.401
Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 470 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The common interest doctrine -- like the co-client exception -- is typically referred to as an exception to the attorney-client privilege waiver rule rather than a privilege itself.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 3/14

Chapter: 20.401
Case Name: Falana v. Kent State Univ., Case No. 5:08 CV 720, 2012 U.S. Dist. LEXIS 173114, at *11 (N.D. Ohio Dec. 6, 2012)
(holding the co-defendant could enter into a valid common interest agreement; "The common interest privilege asserted by defendants to oppose plaintiff's discovery requests is not an independent privilege, but an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties, and assumes the existence of an underlying privilege. . . . One of the situations where the common interest exception applies is when the parties share a common defense interest and enter into a written joint defense agreement to assure that shared information remains privileged.")

Case Date Jurisdiction State Cite Checked
2012-12-06 Federal OH B 9/13

Chapter: 20.401
Case Name: Generac Power Sys., Inc. v. Kohler Co., Case No. 11 CV 1120 JPS, 2012 U.S. Dist. LEXIS 160400, at *4 (E.D. Wisc. Nov. 8, 2012)
("The common interest doctrine is not a source of confidentiality in and of itself, but rather provides that disclosure of privileged material between parties does not result in the waiver of privilege, so long as the parties share a 'common interest' in the case.")

Case Date Jurisdiction State Cite Checked
2012-11-08 Federal WI B 7/13

Chapter: 20.401
Case Name: Glassman v. Crossfit, Inc., Civ. A. No. 7717 VCG, 2012 Del. Ch. LEXIS 248, at *5 (Del. Ch. Oct. 12, 2012)
(finding that the common interest doctrine did not apply to protect communications between a wife going through a divorce and the buyer of her interest in a company; "The common-interest doctrine is an exception to the general rule that the attorney client privilege is waived when a party discloses privileged information to a third party.")

Case Date Jurisdiction State Cite Checked
2012-10-12 State DE B 12/13

Chapter: 20.402
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "Importantly, the doctrine 'is not an independent source of privilege or confidentiality' so that '[i]f a communication is not protected by the attorney-client privilege or the attorney work-product doctrine, the common interest doctrine does not apply.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY

Chapter: 20.402
Case Name: Waymo LLC v. Uber Technologies, Inc., 2017-2235, 2017-2253, 2017 U.S. App. LEXIS 17668 (Fed. Cir. Sept. 13, 2017)
(denying a mandamus petition based on a common interest privilege assertion for a communications between Uber and Ottomotto (a company founded by a former Waymo employee who allegedly stole Google's secrets and brought them to Uber); "As to the first requirement of the common interest doctrine, Mr. Levandowski does not take the position that his communications with Stroz were 'privilege[d] in the first place.'"; "'We note that neither Stroz [Lawyer hired by Uber (a company founded by former Waymo employee Levandowski to investigate other Ottomotto employees previously employed by Waymo)], nor Uber's counsel, nor Ottomotto's counsel represent Mr. Levandowski.'"; "As to the second requirement of the common interest doctrine, the record contradicts Mr. Levandowski's assertions that the District Court committed both legal and factual error. Mr. Levandowski argues that the District Court committed legal error by 'adopt[ing] a blanket rule that parties with 'separate counsel on opposite sides of a proposed transaction' do not share a common legal interest sufficient to protect against waiver of the attorney-client privilege.'"; "[T]he Magistrate Judge found persuasive the term sheet between Uber and Ottomotto and the Stroz Report . . . and determined that these documents demonstrated that Uber's interests 'were not aligned' with those of Mr. Levandowski."; "Uber and Ottomotto, but not Mr. Levandowski, hired Stroz to investigate various issues, including whether Mr. Levandowski improperly retained confidential information from Waymo . . . Mr. Levandowski did not hire or enter into any other formal arrangement with Stroz."; "These facts support the District Court's conclusion that Uber's interests were adverse to Mr. Levandowski's because he was the subject of an investigation ordered by two parties on opposite sides of a proposed transaction. These undisputed facts are sufficient to uphold the District Court's conclusion that Mr. Levandowski did not share a common interest with Uber. We thus decline to find error in the District Court's factual findings or legal conclusions.")

Case Date Jurisdiction State Cite Checked
2017-09-13 Federal

Chapter: 20.402
Case Name: Margulis v. The Hertz Corp., Civ. A. No. 14-1209 (JMV), 2016 U.S. Dist. LEXIS 149472 (D.N.J. Oct. 28, 2016)
("Documents may be withheld on attorney-client privilege or work-product grounds. The common-interest rule allows the withholding party to share that privileged communication with others that are within a community of interest without waiving the underlying privilege. In order to avoid waiver of privilege protection when sharing protected communications, the disclosure of privileged information must be (1) made due to actual or anticipated litigation, (2) for the purpose of furthering a common interest, and (3) made in a manner not inconsistent with maintaining confidentiality against adverse parties."; "Here, no showing of underlying privilege has been made. The privilege log refers to 'Documents Withheld Under Common Interest Privilege.'. . . The log continues by identifying the applicable privilege for documents as the 'common interest privilege.' Id. As explained, this does not work. The claiming party must articulate how each document withheld is privileged from disclosure. The Court is not in a position to make this determination from what has been presented. Is the communication between an attorney and that attorney's client? Is the communication for purposes of receiving or providing legal advice? The email documents provided seem innocuous and likely not privileged, but more importantly, the requisite specific information is not provided and therefore the Court cannot make an informed analysis of the subject."; "Determining whether these emails are protected by the common-interest doctrine is premature and, in fact, impossible without determining whether they are privileged in the first place. For that reason, Defendant's invocation of the common-interest doctrine is premature and DENIED WITHOUT PREJUDICE. If Defendant has a basis to assert an actual privilege with respect to any of the communications withheld, it shall identify same, with as much detail as possible. If it cannot make this showing, the documents should be produced immediately.")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal NJ

Chapter: 20.402
Case Name: United States v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967 (E.D. Tex. March 15, 2016)
("The common interest privilege is an extension of the attorney-client privilege and of the work product doctrine. . . . It is not a separate privilege, in and of itself, but is instead 'a rule of non-waiver.'")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX

Chapter: 20.402
Case Name: Delaware Display Group LLC v. Lenovo Group Ltd., Civ. A. No. 13-2108-RGA, Civ. A. No. 13-2109-RGA, Civ. A. No. 13-2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016)
("'The common interest doctrine is an exception to attorney-client privilege; it is not a stand-alone basis for claiming privilege.'")

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal DE

Chapter: 20.402
Case Name: CGC Holding Co., LLC v. Hutchens, Civ. A. No. 11-cv-01012-RBJ-KLM, 2016 U.S. Dist. LEXIS 6523, at *19 (D. Colo. Jan. 20, 2016)
(analyzing a situation in which plaintiff said that the defendant's law firm helped its client swindle the plaintiff; denying privilege and work product protection for communications between the law firm's investigator and the law firm's former client, despite a common interest claim; "Given the inapplicability of the attorney-client privilege to the documents listed on Privilege Log #538-3, they must qualify as work product to be protected by the 'joint defense privilege.' In order to be 'work product,' they must have been 'prepared in anticipation of litigation or for trial.' Fed. R. Civ. Pro. 26(b)(3)(A). Indeed, Courts in this district generally require a showing that the work at issue was prepared due to 'the real and imminent threat of litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal CO B 7/16

Chapter: 20.402
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
("The Court agrees with Plaintiff that adding the attorney-client designation along with the common-interest designation is not inappropriate. To the contrary, as the Court indicated, for the common-interest doctrine to apply, the underlying communication must be privileged. Thus, where the Court has specifically informed the Parties that their privilege log is not sufficiently detailed, the Court finds nothing improper about Plaintiffs and CRA identifying the nature of the privileged communication. Any other holding would render the Court's initially ruling inapposite.")

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI

Chapter: 20.402
Case Name: Great Am. Insurance Co. of New York v. Castleton Commodities International LLC, 15 Civ. 3976 (JSR), 2015 U.S. Dist. LEXIS 144338 (S.D.N.Y. Oct. 15, 2015)
(in a first party insurance case, holding that the key date for work product protection was when the insurance company rejected the first party insured claim; "The Court is willing to assume that plaintiffs are entitled to the benefits of the common interest doctrine for the purposes of not waiving other forms of privilege by sending messages among themselves and their counsel. However, the Court does not view the common interest doctrine as an 'independent source of privilege or confidentiality.'")

Case Date Jurisdiction State Cite Checked
2015-10-15 Federal NY

Chapter: 20.402
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *11 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "The common interest privilege only applies to those communications that would have been protected by the attorney-client privilege or the work product doctrine if Callahan [Co-plaintiff] had only shared them with her own attorney -- the common interest doctrine does not make otherwise non-privileged information privileged merely because it was shared with an attorney.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 7/14

Chapter: 20.402
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *7 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "[A] party must establish that the underlying communications were otherwise privileged before the common interest arose.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 6/14

Chapter: 20.402
Case Name: Synovus Bank v. Karp, Civ. No. 1:10-cv-172, 2013 U.S. Dist. LEXIS 105772, at *12, *13-14 (W.D.N.C. July 29, 2013)
("In order for the common interest privilege to apply, the shared communication or information must first satisfy the attorney-client privilege or the work product doctrine."; "The cursory response by Defendants to the Motion to Compel fails to demonstrate that the common interest privilege applies to any of the documents or communications at issue. As a threshold matter, Defendants have failed to demonstrate that the communications and documents at issue are subject to either the attorney-client privilege or the attorney work product. In fact, it seems entirely implausible that all the documents at issue are protected by either of these privileges. Moreover, Defendants failed to provide Plaintiff with a privilege log.")

Case Date Jurisdiction State Cite Checked
2013-07-29 Federal NC B 4/14

Chapter: 20.402
Case Name: Smedley v. Lambert, No. 3:12-0003, 2013 U.S. Dist. LEXIS 45460, at *5-6 (M.D. Tenn. Mar. 29, 2013)
("The proponent of the common interest privilege has the burden of establishing the necessary elements of privilege. . . . To carry this burden, the proponent must demonstrate: (1) that the otherwise privileged information was disclosed due to actual or anticipated litigation, (2) that the disclosure was made for the purpose of furthering a common interest in the actual or anticipated litigation, (3) that the disclosure was made in a manner not inconsistent with maintaining its confidentiality against adverse parties, and (4) that the person disclosing the information has not otherwise waived the attorney-client privilege for the disclosed information.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal TN B 3/14

Chapter: 20.402
Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *14 (N.D. Ill. Mar. 4, 2013)
("The common-interest privilege does not apply unless the conditions of privilege are otherwise satisfied. Accordingly, the party asserting the common-interest doctrine has the burden of establishing not only the elements of the attorney-client privilege, but also those of the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2013-03-04 Federal IL B 3/14

Chapter: 20.402
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 605-06 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "One member of a joint defense group cannot waive the privilege that attached to the information shared by another member of the group without the consent of that member, but any defendant could, of course, testify as to her own statements at any time. ")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 20.402
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("The common interest doctrine satisfies only the inter-agency or intra-agency requirement of Exemption 5; it does not satisfy the second requirement, namely that the withheld documents be privileged. See Hunton & Williams, 590 F.3d at 280.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 20.402
Case Name: In re Outside Wall Tire Litig., Case No. 1:09cv1217, 2010 U.S. Dist. LEXIS 67578, at *7-8 (E.D. Va. July 6, 2010)
("It follows from these conclusions that the communications were not privileged in the first instance that the so-called 'common interest privilege' does not protect the e-mail communication betwen Vance and Kandhari. This is so because it 'is "more properly identified as the common interest rule,"' for it does not create a privilege where one does not otherwise exist. In re Grand Jury Subpoenas 89-3 & 89-4, 902 F.2d 244, 249 (4th Cir. 1990) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)). Instead, the rule is an exception to the ordinary principle that a privilege is waived when the confidential information is shared with a third party in circumstances where the third party '"share[s] a common interest about a legal matter."' Id. (quoting Schwimmer, 892 F.2d at 243-44). Thus, the common interest rule 'presupposes the existence of an otherwise valid privilege,' id., the absence of which is fatal to a claim that evidence is privileged and therefore inadmissible.")

Case Date Jurisdiction State Cite Checked
2010-07-06 Federal VA

Chapter: 20.403
Case Name: Smedley v. Lambert, No. 3:12-0003, 2013 U.S. Dist. LEXIS 45460, at *5-6 (M.D. Tenn. Mar. 29, 2013)
("The proponent of the common interest privilege has the burden of establishing the necessary elements of privilege. . . . To carry this burden, the proponent must demonstrate: (1) that the otherwise privileged information was disclosed due to actual or anticipated litigation, (2) that the disclosure was made for the purpose of furthering a common interest in the actual or anticipated litigation, (3) that the disclosure was made in a manner not inconsistent with maintaining its confidentiality against adverse parties, and (4) that the person disclosing the information has not otherwise waived the attorney-client privilege for the disclosed information.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal TN B 3/14

Chapter: 20.403
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12 mc 00131 SI, 2012 U.S. Dist. LEXIS 158348, at *7 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "[T]he Court is not persuaded that the common interest doctrine is applicable when the disclosure of legal advice is to an unknown number of potential investors, there is no formal confidentiality agreement between the parties, and the parties' sole joint legal interest is in valid intellectual property rights needed in order to maximize the value of an investment.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.501
Case Name: Margulis v. The Hertz Corp., Civ. A. No. 14-1209 (JMV), 2016 U.S. Dist. LEXIS 149472 (D.N.J. Oct. 28, 2016)
("Documents may be withheld on attorney-client privilege or work-product grounds. The common-interest rule allows the withholding party to share that privileged communication with others that are within a community of interest without waiving the underlying privilege. In order to avoid waiver of privilege protection when sharing protected communications, the disclosure of privileged information must be (1) made due to actual or anticipated litigation, (2) for the purpose of furthering a common interest, and (3) made in a manner not inconsistent with maintaining confidentiality against adverse parties."; "Here, no showing of underlying privilege has been made. The privilege log refers to 'Documents Withheld Under Common Interest Privilege.'. . . The log continues by identifying the applicable privilege for documents as the 'common interest privilege.' Id. As explained, this does not work. The claiming party must articulate how each document withheld is privileged from disclosure. The Court is not in a position to make this determination from what has been presented. Is the communication between an attorney and that attorney's client? Is the communication for purposes of receiving or providing legal advice? The email documents provided seem innocuous and likely not privileged, but more importantly, the requisite specific information is not provided and therefore the Court cannot make an informed analysis of the subject."; "Determining whether these emails are protected by the common-interest doctrine is premature and, in fact, impossible without determining whether they are privileged in the first place. For that reason, Defendant's invocation of the common-interest doctrine is premature and DENIED WITHOUT PREJUDICE. If Defendant has a basis to assert an actual privilege with respect to any of the communications withheld, it shall identify same, with as much detail as possible. If it cannot make this showing, the documents should be produced immediately.")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal NJ

Chapter: 20.501
Case Name: Wachob Leasing Co., Inc. v. Gulfport Aviation Partners, LLC, Civ. A. No. 1:15CV237-HSO-RHW, 2016 U.S. Dist. LEXIS 78660 (S.D. Miss. June 16, 2016)
("The Fifth Circuit recognizes two types of communications protected by the common legal interest privilege: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel. . . . With respect to the latter category, the Fifth Circuit defines the term 'potential' to mean a palpable threat of litigation at the time of communication.")

Case Date Jurisdiction State Cite Checked
2016-06-16 Federal MS

Chapter: 20.501
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
("'There is some tension in New York law regarding whether 'reasonably anticipated litigation' is required for the common-interest privilege to apply. Compare Allied Irish Banks, P.L.C., 252 F.R.D. at 171 (citing cases stating this requirement), with Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129, 998 N.Y.S.2d 329, 334 (App. Div. 2014). . . . However, because the Court affirms Judge Peebles's finding that the University did not meet other aspects of its burden to show that the common-interest privilege applied to withheld documents, the Court need not address this issue.'")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 20.501
Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "Florida courts have found that the most important question is whether the information was exchanged for the limited purpose of assisting in the parties' common, litigation-related cause."

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal FL

Chapter: 20.501
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "The common interest exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties applies to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. . . . The disclosure may occur prior to the commencement of litigation. . . . Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information. . . . Moreover, the common interest need not be identical; a common purpose will suffice."; "Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. . . . Moreover, the rule should be broad enough to encompass the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.501
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *37 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "In all of the cases relied upon by Potandon, it is clear to the Court that the threat of impending litigation, or actual litigation, was involved. Yet Potandon seeks to stretch the bounds of the common interest doctrine too far. It acknowledges that there was no threat of litigation at the time the communications were shared, just a common desire to remain in compliance with the Capper-Volstead Act. The communications therefore involve legal compliance advice merely to remain compliant with the Act.")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.501
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *31-32 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The fact they may have had a shared desire to maintain compliance and avoid litigation also does not transform the cooperatives' common interest with Potandon 'into a legal, as opposed to commercial, matter.' . . . . Although Potandon characterizes the interest it shared with the cooperatives as a 'legal' interest, naming it as such does not transform its business interest into a legal interest for purposes of the common interest doctrine. There is no evidence of any concern regarding pending or threatened litigation raised during the time period of these communications. Even if there was a general consensus to avoid litigation by maintaining compliance with Capper-Volstead, 'a business strategy which happens to include a concern about litigation is not a ground for invoking the common interest rule.'")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.501
Case Name: In re Application of Tinsel Grp., S.A., Misc. A. No. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *7-8, *9, *9-10 (S.D. Tex. Jan. 22, 2014)
(analyzing the common interest doctrine; "Respondents do not, and cannot, assert that their communications are protected under the former category because of all of the respondents, only Planck is a party in the Dutch Litigation. Rather, respondents claim that they all share a common legal interest in the Dutch Litigation, despite being non-parties in that case."; "Tinsel seeks documents exchanged between or among respondents or their attorneys from 2005 to the present. The Dutch Litigation did not commence until October 2011, and the Common Interest Agreement did not take effect until March 31, 2011. Temporal length between the majority of documents sought by Tinsel and the prospect of litigation is too great for the court to consider all the documents pre-dating the Common Interest Agreement to be covered by the common interest privilege."; "Further, the fact that all of the respondents (besides Planck) are not even co-defendants in the Dutch Litigation make the respondents' reliance on the common interest privilege even more tenuous. Because the Tinsel subpoenas seek documents that were disclosed to other entities or their counsel, such documents are not privileged on the basis of the common interest privilege until litigation became a palpable reality. . . . Respondents concede that they did not anticipate the Dutch Litigation until January 2011. Therefore, documents exchanged between or among the respondents prior to that date are not privileged.")

Case Date Jurisdiction State Cite Checked
2014-01-22 Federal TX B 6/14

Chapter: 20.501
Case Name: In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2014-01-22 Federal TX
Comment:

key case


Chapter: 20.501
Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal CA
Comment:

key case


Chapter: 20.501
Case Name: Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2013-12-31 Federal IN
Comment:

key case


Chapter: 20.503
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., No. 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631, at *23 (S.D.N.Y. July 23, 2018)
October 3, 2018 (PRIVILEGE POINT)

Courts Continue to Diverge on the Common Interest Doctrine's Dependence on Anticipated Litigation

Most courts apply the common interest doctrine only in litigation-related circumstances, although a few courts extend the doctrine to transactional contexts.

In BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., Judge Netburn could not have been any clearer: "[t]he common interest doctrine only shields communications between codefendants, coplaintiffs, or persons who reasonably anticipate that they will become colitigants." No. 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631, at *23 (S.D.N.Y. July 23, 2018). Two days later, the court in Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018), took a broader view. The court applied the common interest doctrine to communications between two companies that "were together in negotiations with [a third company], and [that] sought and received legal advice about the legal ramifications of aspects of that deal." Id. at *18. Because "the issues addressed in the communications were specific legal issues,” they “do not lose their legal characteristics merely because they arise in the context of a business transaction." Id. at *19.

Companies and their lawyers hoping to maximize privilege protection should welcome these occasional decisions applying the common interest doctrine in transactional rather than just litigation contexts. But they are rare, and companies may not know whether they will be lucky enough to find themselves litigating in those few oases of an expansive common interest doctrine.

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal

Chapter: 20.503
Case Name: Osborn v. Griffin, Civ. A. No. 11-89-WOB-CJS, Civ. A. No. 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 201059 (E.D. Ky. Nov. 19, 2013)
(holding that Kentucky applied the common interest doctrine only in pending litigation; "KRE 503(b)(3) is not identical to the proposed Federal Rule 503. Unlike the proposed federal rule, KRE 503(b)(3) expressly requires that litigation be pending and that the communication concern a matter of common interest in that pending litigation."; "Under the plain language of the Kentucky rule, the attorney-client privilege includes communications with a third party only if the third party is a 'lawyer or a representative of the lawyer representing another party in a pending action' and if the communication is on a 'matter of common interest therein.' KRE 503(b)(3) (emphasis added). 'Thus, in Kentucky, pre-litigation communications among multiple clients and their counsel are not privileged. See In re: Matthew R. Klein/Cabinet for Health & Family Serv., 2010 WL 1989593.")

Case Date Jurisdiction State Cite Checked
2013-11-19 Federal KY
Comment:

key case


Chapter: 20.504
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., No. 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631, at *23 (S.D.N.Y. July 23, 2018)
October 3, 2018 (PRIVILEGE POINT)

Courts Continue to Diverge on the Common Interest Doctrine's Dependence on Anticipated Litigation

Most courts apply the common interest doctrine only in litigation-related circumstances, although a few courts extend the doctrine to transactional contexts.

In BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., Judge Netburn could not have been any clearer: "[t]he common interest doctrine only shields communications between codefendants, coplaintiffs, or persons who reasonably anticipate that they will become colitigants." No. 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631, at *23 (S.D.N.Y. July 23, 2018). Two days later, the court in Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018), took a broader view. The court applied the common interest doctrine to communications between two companies that "were together in negotiations with [a third company], and [that] sought and received legal advice about the legal ramifications of aspects of that deal." Id. at *18. Because "the issues addressed in the communications were specific legal issues,” they “do not lose their legal characteristics merely because they arise in the context of a business transaction." Id. at *19.

Companies and their lawyers hoping to maximize privilege protection should welcome these occasional decisions applying the common interest doctrine in transactional rather than just litigation contexts. But they are rare, and companies may not know whether they will be lucky enough to find themselves litigating in those few oases of an expansive common interest doctrine.

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal

Chapter: 20.504
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "The common interest doctrine only shields communications between codefendants, coplaintiffs, or persons who reasonably anticipate that they will become colitigants.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY
Comment:

key case


Chapter: 20.504
Case Name: Blattman v. Scaramellino, No. 17-1589, 2018 U.S. App. LEXIS 14252 (1st Cir. App. May 17, 2018)
(analyzing the difference between a joint representation and a common interest agreement, but finding that neither one existed; "The District Court made no finding, however, that Scaramellino and Blattman were co-clients or that they enjoyed a 'common interest' privilege. The record certainly does not compel the conclusion that such a relationship or 'common interest' existed. For example, the record shows that Scaramellino did not sign an engagement letter with Blattman's lawyers, that Scaramellino had released claims against the Delaware Action defendants that Blattman was considering pursuing, and that Scaramellino had affirmatively disclaimed any interest in pursuing litigation. We thus find no error in the District Court's attorney-client privilege ruling.")

Case Date Jurisdiction State Cite Checked
2018-05-17 Federal

Chapter: 20.504
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
("The common interest doctrine does not protect the five redactions at issue because Defendant Cultural Care, Inc., the holder of the attorney-client privilege, disclosed the privileged information to the Alliance, which does not have an identical legal interest. Defendants' argument, that '[w]ith respect to this litigation, the Alliance and Defendants have an identical interest -- to prevail,' an argument the Magistrate Judge adopted, is inaccurate. . . . For Defendants to 'prevail' in this action is for them to escape liability for the underpayment of au pairs under the FLSA or state minimum wage laws. The Alliance does not, and cannot have, that interest because the Alliance cannot be held liable for underpayments to au pairs. The Alliance is differently -- situated to Plaintiffs' claims than Defendants are, for the Alliance is not an employer of au pairs and did not pay au pairs. In short, the Alliance has no interest in escaping liability, unlike Defendants. . . . Defendants thus have failed to carry their burden to show an identical legal interest with the Alliance. The common-interest doctrine does not protect the attorney-client privileged information Defendant Cultural Care, Inc. divulged to third party the Alliance."; "The Magistrate Judge's conclusion that Defendants and the Alliance have an identical legal interest in 'retaining] the current method of stipends' is contrary to law. . . . That is not an identical legal interest; it is a business or commercial interest. . . . The Magistrate Judge also erred in stating that 'the Alliance could be named . . . an active aider and abettor' or 'a potential defendant' in this action. . . . As the Court has discussed at length, the Alliance cannot be named a defendant to Plaintiffs' claims because the Alliance is not responsible for paying au pairs.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 20.504
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "We are more inclined toward the modern trend of referring to the doctrine not as a privilege in and of itself -- the privilege is either the attorney-client or work-product privilege -- but as an exception to the rule of waiver that would ordinarily be triggered when attorneys and clients communicate in the presence of, or share information with, third parties; this exception is based on the parties' common interest in defeating a litigation adversary.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.504
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "Aside from federal court, many states have recognized that parties with a common interest in defeating a litigation opponent (or potential opponent) may share privileged information without waiving the privilege as to third parties.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.504
Case Name: Cejka v. Vectrus Sys. Corp., Civ. A. No. 15-cv-02418-MEH, 2017 U.S. Dist. LEXIS 117419 (D. Colo. July 27, 2017)
("Although Fluor was not actually named as a party to this case, the Court finds that these facts, known at the time Vectrus and Fluor were made aware of potential litigation by the Plaintiffs in June and July 2015, suffice to demonstrate a common interest between Vectrus and Fluor concerning their involvement in and preparation for such litigation. In other words, the Court concludes that the nature of the interests between Vectrus and Fluor starting in July 2015 regarding potential litigation by the Plaintiffs were identical, and the legal hold notice and communications between Vectrus' and Fluor's attorneys arising therefrom 'advance[d] the representation of the part[ies] and the attorney[s'] preparation of the case.'")

Case Date Jurisdiction State Cite Checked
2017-07-27 Federal CO

Chapter: 20.504
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Moreover, review of those documents themselves supports the Court's finding that they should be withheld from production since these documents are, in large part, transmittal correspondence between counsel for Wyoming and Napleton that makes clear the parties' joint effort to address the legal issues that Audi had raised with them. Very often, these documents are simply cover letters or emails that accompanied draft documents that the parties were sharing for comment, and which would subsequently be provided to Audi in substantially the same form. In other cases, the correspondence is some brief acknowledgment of communication received from Audi's counsel, and scheduling further discussions between the dealerships in order to prepare a concerted response that addresses the issues Audi was pressing. Although the Court recognizes that Audi may mine these limited pieces of correspondence for significance that might not be immediately apparent, the Court finds that the probative value of the correspondence itself is in large measure especially limited and thus this entire discovery dispute ultimately winds up being about withheld communications which often have very little apparent substance to them."; "Accordingly, following review of the parties' briefs and the documents submitted in camera, the Court agrees with Wyoming Valley's assertion that the common-interest privilege applies to each of the documents identified on Logs 1 and 3 because Wyoming Valley has effectively demonstrated that it shared with Napleton the kind of substantial parallel legal interests are necessary for the common-interest privilege to be applicable to this narrow set of documents, much of it correspondence between counsel. That the parties may have shared a commercial interest both in seeing this transaction through to closing, and in overcoming Audi's opposition to the deal, does not mean that the dealerships did not also have substantially similar legal interests vis a vis Audi, which was seeking to protect its alleged rights under its contract with Wyoming Valley."; "It is difficult to read Audi's correspondence in September 2016 as doing anything less than threatening formal legal action and making specific legal demands, which Wyoming Valley and Napleton had a shared interest in addressing. Although they may have previously been on opposite sides of an arms' length transaction, in the fall and winter of 2016, Wyoming Valley's and Napleton's interests converged more closely, and became increasingly intertwined such that Napleton has recently been permitted to intervene in this case to defend the transaction that Audi has attacked. Therefore although the parties may not have shared common legal interests prior to the fall of 2016, the Court finds that they did so after Audi's September 28, 2016 letter. That letter presented a common legal threat to the parties' common commercial interests. Confronted by this common legal threat, we believe that the parties now had a common legal interest in coordinating a response to this threatened litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.504
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Upon consideration of the form and tone of this correspondence, the Court agrees that the manufacturers' challenges to the Purchase Agreement, which explicitly referred to alleged violations of law and material breaches of contracts, made litigation reasonably foreseeable, and inspired a change in the relationship between Wyoming Valley and Napleton, which now began exchanging correspondence with one another through their respective counsel not only to negotiate the transaction, but to address the manufacturers' concerns and thinly veiled threats of legal action."; "'Counsel may have continued to negotiate the transaction on behalf of their clients, but the documents submitted for in camera review reflect counsel working together to formulate legal responses to Audi's challenge to the deal.'"; "Although Wyoming Valley and Napleton were previously parties to an arms' length transaction to which they could, in some respects, be considered adverse to one another, after Audi sent a letter challenging the contract that they had negotiated, these parties had a shared legal as well as commercial interest in defending against Audi's efforts to disrupt the deal. Audi's letter plainly threatened legal challenge to the transaction, and identified its own legal interests that it claimed were infringed. The Court finds that Audi's direct challenge to the transaction also gave rise to a common legal interest shared by the dealerships in responding to Audi's threats.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.504
Case Name: AP Atlantic, Inc. v. Crescent Univ. City Venture, LLC, 15 CVS 14745 (Master File), 16 CVS 14844 (Related Case), 2017 NCBC LEXIS 49 (N.C. Super. June 6, 2017)
(finding that the common interest agreement did not apply to communications between a property owner and a contractor; "To extend the attorney-client privilege between or among the attorney, the attorney's client, and a third party, the client and third party must '(1) share a common [legal] interest; (2) agree to exchange information for the purpose of facilitating legal representation of the parties; and (3) the information must otherwise be confidential.'. . . In such circumstances, the privilege 'serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.'"; "[B]ut only if the parties have a common interest about a legal matter -- not a common business interest 'that may be impacted by litigation involving one of the parties,' id. (quoting SCR-Tech LLC v. Evonik Energy Servs. LLC, 2013 NCBC LEXIS 38, at *16 (N.C. Super. Ct. Aug. 13, 2013)) (holding that the defendants and a third-party 'shared a common business interest as opposed to the common legal interest' where the third-party was not a party to the litigation and the litigation was not materially related to the defendants' transaction with the third-party allegedly giving rise to the common legal interest)."; "In addition, Crescent has not shown an existing common legal interest between Crescent, the owner of the property at issue, and Summit, the contractor Crescent hired to repair trusses at the property, sufficient to invoke the common interest doctrine. Although Crescent bases the alleged common legal interest here on 'the indemnity and assumption of defense obligations' that Crescent and Summit 'reasonably anticipated would fall to Crescent,' Crescent has not argued that such obligations actually fell to Crescent, and it is undisputed that Summit never received a demand relating to its repairs and is not a party to this litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-06 State NC

Chapter: 20.504
Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
August 2, 2017 (PRIVILEGE POINT)

"Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer"

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or communications protected by the attorney-client privilege, the work product doctrine, or both.

In RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017), plaintiff RKF sued Tropicana in 2014, alleging that Tropicana wrongfully terminated an exclusive agency contract. In 2015, Penn Gambling acquired Tropicana. RKF then sought discovery of "information about [its] lawsuits" that Tropicana disclosed to Penn Gaming before the acquisition. Id. at *5. The court found that Tropicana's due diligence disclosures waived privilege protection but not work product protection. In finding a privilege waiver, the court rejected Tropicana's argument that it shared a "common interest" with acquirer Penn Gaming -- noting that the "majority of courts have rejected application of the [common interest] doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort." Id. at *10. The court concluded that "Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition." Id. at *14. In contrast, the court found that Tropicana did not waive its work product protection by disclosing work product to Penn Gaming during the due diligence process. The court correctly noted that unlike the fragile privilege protection, work product protection "is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary." Id. at *17. The court concluded that Penn Gaming had a vital interest in preserving as confidential Tropicana's disclosure about RKF's suit because Penn Gaming "would, directly or indirectly, assume Tropicana's potential liability if the merger went through." Id. at *18.

Other courts have reached the identical two-part conclusion in addressing pre-acquisition due diligence disclosures – which dramatically highlights the contrast between the fragile privilege protection and the robust work product protection.

Case Date Jurisdiction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 20.504
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "In order to avoid waiver of privilege protection when sharing protected communications, the disclosure of privileged information must be (1) made due to actual or anticipated litigation, (2) for the purpose of furthering a common interest, and (3) made in a manner not inconsistent with maintaining confidentiality against adverse parties.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ

Chapter: 20.504
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "Monex sets the exchange rate for DCC, trains Hertz' employees and earns revenue on each DCC transaction. Since DCC is at the heart of the case, it is possible that Hertz and Monex could have believed that they could have been part of this litigation. . . . At the same time, further sharing with Monex on a going forward basis would likely not be protected, as it is no longer reasonable for Monex to believe it will be added to the suit, as Plaintiff has not sought to do so for three years. However, at the time the sharing occurred, and based upon the services Monex provides to Hertz, which are the subject of the case, a reasonable belief of potential or anticipated litigation could exist."; "The second factor is the purpose of the sharing. O'Boyle, 218 N.J. at 199. Defendant represents that the purpose of the sharing was to obtain additional information relating to DCC to assist Hertz' counsel in defense of the litigation. This would seem to satisfy the second prong of the common-interest test, at least under the far-reaching New Jersey formulation of the doctrine."; "The third factor is whether the sharing was made in a manner not inconsistent with maintaining the privilege and confidentiality against adverse parties. Id. The answers to those questions are document specific. From what the Court has seen from reviewing the limited entries on the log submitted, that is not necessarily the case, although at times it could be. Some log entries refer to emails with the subject listed as 'Hertz Legal Case -- Extremely Urgent' (see Category 2 Log; 403). However, other documents make no reference to the case, and it is unclear how the recipient viewed the document and its confidentiality (see, e.g., Category 2 Log; 673.)"; "Based on the above, the Court finds that the first and second factors of the common-interest question are satisfied in this case. Whether the third and final factor is satisfied, and thus whether sharing was permissible, would depend on the particulars of the specific documents, which have not been properly presented.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 20.504
Case Name: 59 South 4th LLC v. A-Top Ins. Brokerage, Inc., 650979/2015, 2017 N.Y. Misc. LEXIS 107 (N.Y. Sup. Ct. Jan. 10, 2017)
(finding that the common interest agreement was ineffective to prevent a waiver of privilege protection for communications between plaintiff building owner and his general contractor, because the general contractor's insurance company had assigned all of its rights to the plaintiff owner and therefore could not anticipate being a litigation party; "In the instant action, defendants' motion to compel plaintiff to produce the documents withheld on the basis of privilege under the common interest doctrine is granted as the court finds that such documents were improperly withheld. The Court of Appeals has made clear that under the common interest doctrine, disclosure of attorney-client communications which Were disclosed to a third party will only be privileged if the communications were between 'codefendants, coplaintiffs or persons who reasonably anticipate that they will become colitigants....' Ambac. Assur. Corp., 27 N.Y.3d at 628. Here, it is undisputed that K-Square is not a coplaintiff of 59 South. Additionally, it is undisputed that K-Square cannot reasonably anticipate that it will become a coplaintiff of 59 South as K-Square has 'absolutely and unconditionally' assigned to 59 South all of K-Square's claims relating to insurance, including K-Square's claims against the defendants herein. Thus, as K-Square does not and cannot reasonably anticipate that it will become plaintiff's colitigant, the communications between 59 South and K-Square, including those between counsel for said parties, are not protected as privileged under the interest doctrine."; "To the extent plaintiff asserts that the common interest doctrine applies to the communications at issue because the requirement set forth by the Court of Appeals in Ambac [Ambac. Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623, 36 N.Y.S.3d 838, 57 N.E.3d 30 (2016)]. Assur. Corp. that there be 'pending or anticipated litigation' has been met based on the fact that the instant litigation is pending, such assertion is without merit. The standard for applying the common interest doctrine is not whether there is a litigation pending but rather whether the communications that are being withheld were between parties who are capable of mounting a common claim or defense in a pending or anticipated litigation. As K-Square is not capable of mounting a common claim with 59 South against defendants, the common interest doctrine does not apply to any communications between 59 South and K-Square, including those between counsel for said parties.")

Case Date Jurisdiction State Cite Checked
2017-01-17 Federal NY
Comment:

key case


Chapter: 20.504
Case Name: 59 South 4th LLC v. A-Top Insurance Brokerage, Inc. , No. 650979/2015, 2017 N.Y. Misc. LEXIS 107 (N.Y. Sup. Ct. Jan. 10, 2017)
March 8, 2017 (PRIVILEGE POINT)

"New York Decision Highlights Another Common Interest Doctrine Risk"

Under the common interest doctrine, separately represented clients may sometimes avoid waiving their fragile privilege protection when they disclose protected documents to each other. Nearly every court applies the doctrine only in the context of litigation or anticipated litigation.

Most -- but not all -- courts extend the doctrine to participants who may not themselves anticipate litigation, but whose interests are closely aligned with those who do. In 59 South 4th LLC v. A-Top Insurance Brokerage, Inc. , No. 650979/2015, 2017 N.Y. Misc. LEXIS 107 (N.Y. Sup. Ct. Jan. 10, 2017) (unpublished opinion), defendant insurance company claimed that plaintiff developer waived its privilege protection by disclosing protected documents to its general contractor (who was not a party). Plaintiff claimed that it shared a common legal interest with its general contractor, but the court rejected that argument – noting that the general contractor had assigned to the plaintiff all of its claims (including any claims against the defendant insurance company). As the court explained, because the general contractor was "not capable of mounting a common claim with [plaintiff] against defendants, the common interest doctrine does not apply to any communications between [plaintiff and its general contractor], including those between counsel for said parties." Id. at *11. Inexplicably, the court did not address possible work product protection – which normally would have survived such disclosure to a friendly third party.

One might call this narrow common interest doctrine application the "weakest link" approach, because one participant's failure to meet the anticipated litigation standard destroys the privilege for all of the participants. This is yet another reason to enter into common interest agreements very warily.

Case Date Jurisdiction State Cite Checked
2017-01-10 Federal NY
Comment:

key case


Chapter: 20.504
Case Name: Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *7 (N.Y. Sup. Ct. Dec. 9, 2016)
February 8, 2017 (PRIVILEGE POINT)

"Courts Continue to Insist that Common Interest Participants Anticipate Litigation"

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to transactional contexts, nearly every court continues to limit the protection to litigants or would-be litigants.

In One World Foods, Inc. v. Stubb's Austin Restaurant Co., Case No. A-14-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016), plaintiff argued that the common interest doctrine protected its pre-closing disclosure of a privileged trademark legal opinion to its purchaser McCormick. Plaintiff ultimately sued defendant over the trademark issue, but not until months after McCormick purchased plaintiff. The court held that at the time McCormick purchased plaintiff there was no "palpable threat of litigation." Id. at *19. One week later, a New York state court similarly rejected a common interest argument advanced by defendants – holding that "there is no pending or anticipated litigation" against one of the common interest participants. Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *7 (N.Y. Sup. Ct. Dec. 9, 2016). As in all similar situations, these common interest participants waived their privilege protection despite having entered into common interest agreements they undoubtedly thought would avoid such a waiver.

Courts have not only failed to expand the common interest doctrine to transactional settings, they also have injected enormous uncertainty into the doctrine's application. Court take widely varying approaches to the work product "anticipation" element that underlies most courts' common interest doctrine – ranging from "some possibility" of litigation to requiring "imminent" litigation.

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY
Comment:

key case


Chapter: 20.504
Case Name: Kagan v. Minkowitz, 500940/2016, 2016 N.Y. Misc. LEXIS 4577, 2016 NY Slip Op 32429(U) (N.Y. Dec. 9, 2016)
(finding that plaintiff's brother was outside privilege protection, and did not share a common interest with the plaintiff; in contrast, finding that disclosure to the brother did not waive work product protection; "[T]he common-interest privilege does not apply to the facts of this case since there is no indication that Gam [Plaintiff's brother and funder of the litigation] has a 'legal interest' in common with Kagan because there is no pending or anticipated litigation against Gam.")

Case Date Jurisdiction State Cite Checked
2016-12-09 State NY

Chapter: 20.504
Case Name: Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *7 (N.Y. Sup. Ct. Dec. 9, 2016)
February 8, 2017 (PRIVILEGE POINT)

"Courts Continue to Insist that Common Interest Participants Anticipate Litigation"

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to transactional contexts, nearly every court continues to limit the protection to litigants or would-be litigants.

In One World Foods, Inc. v. Stubb's Austin Restaurant Co., Case No. A-14-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016), plaintiff argued that the common interest doctrine protected its pre-closing disclosure of a privileged trademark legal opinion to its purchaser McCormick. Plaintiff ultimately sued defendant over the trademark issue, but not until months after McCormick purchased plaintiff. The court held that at the time McCormick purchased plaintiff there was no "palpable threat of litigation." Id. at *19. One week later, a New York state court similarly rejected a common interest argument advanced by defendants – holding that "there is no pending or anticipated litigation" against one of the common interest participants. Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *7 (N.Y. Sup. Ct. Dec. 9, 2016). As in all similar situations, these common interest participants waived their privilege protection despite having entered into common interest agreements they undoubtedly thought would avoid such a waiver.

Courts have not only failed to expand the common interest doctrine to transactional settings, they also have injected enormous uncertainty into the doctrine's application. Court take widely varying approaches to the work product "anticipation" element that underlies most courts' common interest doctrine – ranging from "some possibility" of litigation to requiring "imminent" litigation.

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY
Comment:

key case


Chapter: 20.504
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Co., Case No. A-14-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
February 8, 2017 (PRIVILEGE POINT)

"Courts Continue to Insist that Common Interest Participants Anticipate Litigation"

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to transactional contexts, nearly every court continues to limit the protection to litigants or would-be litigants.

In One World Foods, Inc. v. Stubb's Austin Restaurant Co., Case No. A-14-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016), plaintiff argued that the common interest doctrine protected its pre-closing disclosure of a privileged trademark legal opinion to its purchaser McCormick. Plaintiff ultimately sued defendant over the trademark issue, but not until months after McCormick purchased plaintiff. The court held that at the time McCormick purchased plaintiff there was no "palpable threat of litigation." Id. at *19. One week later, a New York state court similarly rejected a common interest argument advanced by defendants – holding that "there is no pending or anticipated litigation" against one of the common interest participants. Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *7 (N.Y. Sup. Ct. Dec. 9, 2016). As in all similar situations, these common interest participants waived their privilege protection despite having entered into common interest agreements they undoubtedly thought would avoid such a waiver.

Courts have not only failed to expand the common interest doctrine to transactional settings, they also have injected enormous uncertainty into the doctrine's application. Court take widely varying approaches to the work product "anticipation" element that underlies most courts' common interest doctrine – ranging from "some possibility" of litigation to requiring "imminent" litigation.

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX
Comment:

key case


Chapter: 20.504
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
(holding that plaintiff had waived privilege protection for a legal opinion by turning it over to McCormick, which insisted on receiving the opinion before purchasing the plaintiff; rejecting plaintiff's argument that it and McCormick shared a common interest, because the court found there was no palpable threat of litigation; "As there was no actual litigation when Plaintiff disclosed the Opinion Exhibits to McCormick, the first type of communication protected by CLI privilege does not apply here. The question is then whether the Opinion Exhibits fall in the second category of communications: are the Opinion Exhibits communications between potential co-defendants made in light of a palpable threat of litigation? After examining the evidence provided by both parties concerning relations between SARC and Plaintiff in the period surrounding the disclosure of the Opinion Exhibits to McCormick, the Court finds no palpable threat of litigation."; "Although Plaintiff claims Defendants threatened litigation, Plaintiff provides limited evidence of such a threat. Plaintiff relies on a claim by its attorney that an unspecified executive from Plaintiff commented 'a SARC executive or executives were upset about the turn of events and threatened [Plaintiff] with some sort of legal action.' Such an allegation is insufficient to establish a palpable threat of litigation. . . . Plaintiff also selectively quotes the August 2011 email SARC manager Jeff Waughtal sent to Plaintiff's then-CEO Matt Gase, attempting to paint relations between SARC and Plaintiff as acrimonious. . . . But review of the entire email reveals SARC was hoping to work out the brand issues with Plaintiff and at worst wanted to 'let sleeping dogs lie and keep doing what we are doing.'"; "Rather than sharing the Opinion Exhibits with McCormick to prepare for litigation, Plaintiff shared the Opinion Exhibits with McCormick as a condition of the sale of Plaintiff's stock. . . . Such a communication more closely aligns with a common business undertaking than preparation for litigation and is therefore not protected by the CLI [] privilege.")

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX
Comment:

key case


Chapter: 20.504
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Co., Case No. A-14-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
February 8, 2017 (PRIVILEGE POINT)

"Courts Continue to Insist that Common Interest Participants Anticipate Litigation"

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to transactional contexts, nearly every court continues to limit the protection to litigants or would-be litigants.

In One World Foods, Inc. v. Stubb's Austin Restaurant Co., Case No. A-14-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016), plaintiff argued that the common interest doctrine protected its pre-closing disclosure of a privileged trademark legal opinion to its purchaser McCormick. Plaintiff ultimately sued defendant over the trademark issue, but not until months after McCormick purchased plaintiff. The court held that at the time McCormick purchased plaintiff there was no "palpable threat of litigation." Id. at *19. One week later, a New York state court similarly rejected a common interest argument advanced by defendants – holding that "there is no pending or anticipated litigation" against one of the common interest participants. Kagan v. Minkowitz, No. 500940/2016, 2016 N.Y. Misc. LEXIS 4577, at *7 (N.Y. Sup. Ct. Dec. 9, 2016). As in all similar situations, these common interest participants waived their privilege protection despite having entered into common interest agreements they undoubtedly thought would avoid such a waiver.

Courts have not only failed to expand the common interest doctrine to transactional settings, they also have injected enormous uncertainty into the doctrine's application. Court take widely varying approaches to the work product "anticipation" element that underlies most courts' common interest doctrine – ranging from "some possibility" of litigation to requiring "imminent" litigation.

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX
Comment:

key case


Chapter: 20.504
Case Name: Jiang v. Porter, Case No. 4:15-CV-1008 (CEJ), 2016 U.S. Dist. LEXIS 82939 (E.D. Mo. June 27, 2016)
(apparently holding that the common interest doctrine only applied if every participant was a party or anticipated party to litigation; "Here, defendants have not demonstrated that the parties to the communication at issue have an identical legal interest made in the course of formulating a common legal strategy. The circuit attorney has never been a party in this case, nor has she been an attorney for any party in this case. Thus, there is no merit to defendants' suggestion that she shared a common interest with David Clohessy in defending against plaintiff's claims in this matter.")

Case Date Jurisdiction State Cite Checked
2016-06-27 Federal MO

Chapter: 20.504
Case Name: Wachob Leasing Co., Inc. v. Gulfport Aviation Partners, LLC, Civ. A. No. 1:15CV237-HSO-RHW, 2016 U.S. Dist. LEXIS 78660 (S.D. Miss. June 16, 2016)
("The Fifth Circuit recognizes two types of communications protected by the common legal interest privilege: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel. . . . With respect to the latter category, the Fifth Circuit defines the term 'potential' to mean a palpable threat of litigation at the time of communication.")

Case Date Jurisdiction State Cite Checked
2016-06-16 Federal MS

Chapter: 20.504
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
(holding that the indemnitor and indemintee in an asset purchase agreement did not have a common interest; "While not binding, decisions by several federal courts and the North Carolina Business Court provide some clarity as to what constitutes a common legal interest, distinguishing it in particular from a common business interest. 'For the privilege to apply, the proponent must establish that the parties had some common interest about a legal matter.'"; "[T]he primary purpose of an insurance contract is defense and indemnification. By contrast, an indemnification provision in an asset purchase agreement is generally ancillary to the sale of a business, and Defendants have presented no evidence that their agreement with Blast [Third party] was otherwise. . . . The indemnification provision in the asset purchase agreement requires Blast to defend and indemnify Defendants from '[l]osses incurred or sustained . . . on account of or relating to . . . the use of the [a]ssets by [p]urchaser and the operation of the . . . [h]ealth [c]lubs . . . .' This language, and the nature of the asset purchase agreement, are most similar to the purchase agreement which was held to be insufficient in SCR-Tech [SCR-Tech LLC v. Evonik Energy Serv. LLC, 2013 NCBC 42, 2013 WL 4134602, at *6 (N.C. Bus. Ct. Aug. 13, 2013)] to create a tripartite privileged relationship. Blast is not a party to this litigation. Nor does Blast have any contractual authority to settle or otherwise affect the outcome of the suit against Defendants, unlike the insurer in Nationwide Mut. Fire Ins. [Nationwide Mut. Fire Ins. Co., 172 N.C. App. at 602-03, 617 S.E.2d at 45-46 (2005)]"; "Neither this Court nor the North Carolina Supreme Court has extended the common interest doctrine to relationships formed primarily for purposes other than indemnification or coordination in anticipated litigation. . . . Further, we are aware of no precedent indicating that federal courts within the Fourth Circuit have extended the common interest doctrine to a case 'where the sharing was not done by agreement relating to some shared actual or imminent, specific litigation.'. . . Blast's status as a non-party and the absence of evidence that this litigation was material to its asset purchase agreement with Defendants distinguishes this case from decisions relied upon by Defendants for protection through the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NC

Chapter: 20.504
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 18-19 (N.Y. Sup. Ct. Apr. 21, 2016)
("Applying the law as it exists in the Second Department with respect to the common-interest privilege, HCC was required to establish that the communications between the Paine Parties' defense counsel, HCC and its counsel, and the Excess Insurers and their counsel were not only attorney-client communications made to further a common identical or nearly identical legal interest, but were also made in anticipation of litigation in which the communicating parties had a common legal interest.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 20.504
Case Name: Town of Ledyard v. WMS Gaming, Inc., CV085007839, 2016 Conn. Super. LEXIS 822 (Conn. Sup. Ct. April 19, 2016)
("In this instance the court is persuaded by the argument of the plaintiff to the effect that there is no common legal interest identified by the defendant. The Mashantucket Pequot Tribe was not sued for the collection of taxes.")

Case Date Jurisdiction State Cite Checked
2016-04-19 Federal CT

Chapter: 20.504
Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, Dkt. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223 (W.D. La. March 29, 2016)
(inexplicably finding that a direct subsidiary did not have a common interest with its parent, and that the common interest therefore did not apply to communications between them; also finding plaintiff's disclaimer of any intent to sue the subsidiary meant the subsidiary could not be a common interest participant; "The February 2, 2016, email was written by Mike Dees, in house counsel for the Port and Port Rail, Inc., on the advice of outside counsel and was distributed to various Port employees and an employee of the non-party Port Rail, Inc. The Port argues that since Port Rail, Inc. is a direct subsidiary of the Port, it shares a common legal interest with the Port. We disagree. At the time the email was written the Port and Port Rail, Inc. were not co-clients being jointly represented in the ongoing litigation. Further, Port Rail, Inc. was not a potential client facing 'a palpable threat of litigation at the time of the communication.' The privilege applies when the parties share a common legal interest, not a commercial or financial interest and it does not extend to communications about joint business strategy. FSP Stallion 1, LLC v. Luce, 2010 U.S. Dist. LEXIS 110617, 2010 WL 3895914 *18 (U.S.D.C Nev. Sept. 30, 2010). IFG candidly admits that it has no intention of ever making Port Rail, Inc. a party to this litigation. Thus, if the email was in fact protected by the attorney-client privilege, we find that the privilege was waived by disclosing the communication to an employee of a non-party.")

Case Date Jurisdiction State Cite Checked
2016-03-29 Federal LA
Comment:

key case


Chapter: 20.504
Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223, at *4 (W.D. La. Mar. 29, 2016)
May 18, 2016 (PRIVILEGE POINT)

"Court Issues a Surprising Common Interest Doctrine Decision"

The common interest doctrine can sometimes allow separately represented clients to avoid the normal waiver implications of disclosing privileged communications to each other. However, courts take widely varying views of the doctrine's reach, and reject its applicability in about half of the reported cases — after the participants have already shared privileged communications, and therefore waived their respective privileges.

In IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, plaintiff claimed that defendant's in-house lawyer (who jointly represented the defendant and its "direct subsidiary") waived privilege protection by sending an email to several of defendants employees — and one subsidiary employee. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223, at *4 (W.D. La. Mar. 29, 2016). Defendant argued that such disclosure did not waive defendant's privilege, because the defendant shared a common interest with its own subsidiary. The court found the common interest doctrine inapplicable — because the subsidiary did not face any litigation threat. The court quoted plaintiff, which indicated that "it has no intention of ever making [the subsidiary] a party to this litigation." Id. At *5. Thus, the court held that defendant waived its privilege by disclosing the communication "to an employee of a non-party" — its own subsidiary. Id. Fortunately for defendant, the court also found the work product doctrine applicable, and held that disclosing the email to the subsidiary did not waive that separate protection.

This is a remarkable decision. The common interest doctrine should never have become an issue, because the in-house lawyer jointly represented the parent and its subsidiary. And the court's apparent insistence that every common interest participant must itself anticipate litigation could reward some obvious mischief — plaintiffs could threaten a number of possible defendants, but later disclaim any intent to sue one of them. All in all, cases like this highlight the risk of relying on the common interest doctrine.

Case Date Jurisdiction State Cite Checked
2016-03-29 Federal LA
Comment:

key case


Chapter: 20.504
Case Name: Obesity Research Institute, LLC v. Fiber Research International, LLC, Case No. 15-cv-0595-BAS-MDD, 2016 U.S. Dist. LEXIS 32605 (S.D. Cal. March 11, 2016)
(holding that the supplier product did not have a common legal interest with a litigant; "The communications at issue pertain to the retention of ABC Laboratories to conduct testing of certain products in connection with this litigation. . . . The common interest issue pertains to Mr. Salerno and his company, Nutralliance, Inc. According to Mr. Salerno, Nutralliance supplies the raw material ingredients used in Plaintiff's Lipozene product to other companies that manufacture and bottle the Lipozene product ultimately sold by Plaintiff. . . . Neither Nutralliance nor Mr. Salerno are parties to this instant litigation and their legal, as opposed to commercial, interest in the outcome of this litigation is unclear. Accordingly, the Court declines to extend the common interest doctrine to Mr. Salerno and Nutralliance, Inc.")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal CA

Chapter: 20.504
Case Name: Peter Coppola Beauty, LLC v. Casaro Labs, Ltd., Case No. 14-81488-CIV-MARRA, 2016 U.S. Dist. LEXIS 24570 (S.D. Fla. Feb. 29, 2016)
("Sharing a desire to succeed in an action is not enough to create a common interest where there is no evidence of an agreement, the third-party was never party to the action, and the third-party never exercised control over or contributed to legal expenses.")

Case Date Jurisdiction State Cite Checked
2016-02-29 Federal FL

Chapter: 20.504
Case Name: CGC Holding Co., LLC v. Hutchens, Civ. A. No. 11-cv-01012-RBJ-KLM, 2016 U.S. Dist. LEXIS 6523, at *11-12 (D. Colo. Jan. 20, 2016)
(analyzing a situation in which plaintiff said that the defendant's law firm helped its client swindle the plaintiff; denying privilege and work product protection for communications between the law firm's investigator and the law firm's former client, despite a common interest claim; "[I]n order to establish that the joint defense privilege protects documents from discovery, the movant must show: (1) the documents are protected by the attorney-client privilege and/or the work product doctrine; (2) there was existing litigation or a strong possibility of future litigation at the time of the communications reflected in the documents; and (3) the documents were exchanged between parties and their separate counsel for the purpose of mounting a common defense against the litigation. . . . If all three criteria are met, the documents are protected from discovery unless the privilege is waived by consent of all parties involved in the joint defense.")

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal CO B 7/16

Chapter: 20.504
Case Name: First Mercury Ins. Co. v. Markowitz, Civ. A. No. 2:12-cv-6527 (WHW) (CLW), 2015 U.S. Dist. LEXIS 116670 (D.N.J. Sept. 1, 2015)
(analyzing the common interest doctrine; "To establish that the common interest rule applies to a disclosed communication, the asserting party must show that: (1) the disclosure is made due to actual or anticipated litigation, (2) for the purpose of furthering a common interest, and (3) the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. . . . Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information. . . . Moreover, the common interest need not be identical; a common purpose will suffice.").

Case Date Jurisdiction State Cite Checked
2015-09-01 Federal NJ
Comment:

key case


Chapter: 20.504
Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("The degree of common legal interest required to qualify under the doctrine is the subject of some debate, ranging from 'substantially similar' to 'identical.'"; "The pertinent inquiry is whether litigation was reasonably anticipated. . . . This inquiry can be satisfied well in advance of actual litigation.")

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 20.504
Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(analyzing the common interest doctrine; "The goal must be centered on current or potential litigation.")

Case Date Jurisdiction State Cite Checked
2015-06-18 Federal IL

Chapter: 20.504
Case Name: In re Milo's Kitchen Dog Treats Consolidated Cases, Civ. A. No. 12-1011, 2015 U.S. Dist. LEXIS 63281 (W.D. Pa. May 14, 2015)
(finding that there was no common interest between the plaintiffs and potential class members, with whom the plaintiff communicated by Facebook message; "The common interest privilege protects from disclosure communications made by parties with a common interest to each other in furtherance of a joint defense to litigation. . . . To invoke the joint defense agreement or common interest privilege the party asserting the privilege must demonstrate that: (1) the parties have agreed to a joint defense effort; (2) the parties have a common-interest in the litigation or a jointly shared litigation strategy; (3) the communications were made pursuant to such agreement; and (4) the continued confidentiality of the communications, i.e., the communications were not disclosed to other third parties such that the privileges were waived.")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal PA

Chapter: 20.504
Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "Although the privilege is not limited to situations in which litigation has commenced or is in progress, there must be some common legal effort in furtherance of anticipated litigation.")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 20.504
Case Name: Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal
Comment:

key case


Chapter: 20.504
Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "Florida courts have found that the most important question is whether the information was exchanged for the limited purpose of assisting in the parties' common, litigation-related cause.")

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal FL

Chapter: 20.504
Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "Bellao's [third party] testimony does not establish commonality in a litigation-related cause against a shared adversary, nor does the Court find upon review of the communications that they were made in furtherance of assisting such a cause. . . . Bellao testified that, at the time of her meeting with Swope Rodante in 2010, she knew she was not liable for any claims resulting from the accident. Bellao further testified that she had no claims against GEICO, and brought no claims at all relating to the accident. Moreover, Bellao was not involved in the accident, did not own the vehicle at issue in the accident, and, as of February 2010, she did not believe she was exposed to any liability for the accident. It appears that the extent of Bellao's involvement in Plaintiff's claim, aside from her awareness due to her personal relationship with Plaintiff, was merely her status as a named party on the GEICO insurance policy. This limited contractual interest does not, as matter of law, establish the type of commonality required by the exception, and, therefore, cannot be used to defeat waiver here.")

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal FL

Chapter: 20.504
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *20 (W.D. Wash. Sept. 19, 2014)
("[A]n agreement to pursue a joint strategy need not be made in writing and may be implied from conduct, 'such as attorneys exchanging confidential communications from clients who are or potentially may be codefendants or have common interest in litigation.'")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 20.504
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *20 (W.D. Wash. Sept. 19, 2014)
("Courts have extended the rule to cover communications in joint meetings among clients and their respective attorneys outside criminal defense situations and where litigation has not yet been commenced.")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 20.504
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *31-32 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The fact they may have had a shared desire to maintain compliance and avoid litigation also does not transform the cooperatives' common interest with Potandon 'into a legal, as opposed to commercial, matter.' . . . . Although Potandon characterizes the interest it shared with the cooperatives as a 'legal' interest, naming it as such does not transform its business interest into a legal interest for purposes of the common interest doctrine. There is no evidence of any concern regarding pending or threatened litigation raised during the time period of these communications. Even if there was a general consensus to avoid litigation by maintaining compliance with Capper-Volstead, 'a business strategy which happens to include a concern about litigation is not a ground for invoking the common interest rule.'")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.504
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
(analyzing common interest doctrine; "The 'common interest' LMI asserts exists between it and the Navy, in essence, is little more than a shared desire to see the same outcome in the present case, i.e. a judgment in LMI's favor that requires Steadfast to reimburse LMI for the cost of remediating the pollution conditions at the sites at issue in this case. This interest is insufficient to entitle LMI to protection under the common interest doctrine with respect to the documents with an underlying claim of attorney-client privilege. . . . While LMI does claim to have a written agreement between it and the Navy, entitled 'Common Interest Agreement Relative to Steadfast Insurance Policies,' it provides no evidence as to what that agreement entailed, let alone whether the communications LMI is seeking to protect were made 'in pursuit of a joint strategy in accordance with' that agreement."; "[A] common interest was found between the parties primarily on the basis that their disclosures were made to advance a joint legal strategy concerning either separate litigation involving similar claims and issues or reasonably anticipated joint litigation. Here, however, the Navy has not filed a separate suit against Steadfast concerning the remediation sites at issue, nor is it an insured party under the ELI Policy between LMI and Steadfast that is central to LMI's claims in this case, therefore precluding the possibility of a suit by the Navy against Steadfast presenting similar issues to those that are the subject of this case.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 20.504
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
("Similarly, the common interest doctrine does not apply to the communications disclosed to the City of Vallejo. LMI argues that it also shares a common interest with the City of Vallejo because the City and LMI both want the environmental contamination at Mare Island cleaned up 'sooner rather than later' and 'redevelopment to proceed as soon as possible.'. . . LMI further notes that the City is also a party to the Common Interest Agreement Relative to Steadfast Insurance Policies that LMI entered into with the Navy. However, the City is not a party to the ELI Policy at issue in this case, is not currently in litigation against Steadfast concerning similar issues to those presented in the current case, and the record does not present any indication of anticipated future joint litigation by LMI and the City against Steadfast concerning similar issues to those presented in this case. Furthermore, the fact that the City was a party to the common interest agreement is unpersuasive for the same reasons stated above with respect to the Navy. Finally, LMI has made no showing that the attorney-client communications at issue were revealed to the City in an effort to further LMI's purpose for seeking legal advice."; "[T]he court finds that LMI and the Navy have a common financial interest in obtaining an outcome resulting in LMI collecting as many of its remediation expenses as possible from Steadfast under the ELI Policy.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 20.504
Case Name: Mine Safety Appliances Co. v. The North River Ins. Co., 2:09cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. March 31, 2014)
(analyzing work product issues in a first party bad faith case based on a defendant insurance company's failure to pay for asbestos liability; analyzing the common interest doctrine; "The principles and boundaries of these doctrines remain unsettled under Pennsylvania law."; "The clients must be parties to litigation or involved in similar or related legal proceedings that implicate essentially the same interest against a common adversary.")

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal PA

Chapter: 20.504
Case Name: In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2014-01-22 Federal TX
Comment:

key case


Chapter: 20.504
Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal CA
Comment:

key case


Chapter: 20.504
Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5-6 (N.D. Cal. Jan. 21, 2014)
(finding that the common interest doctrine did not protect documents between two companies' signing of an agreement and plan to merge, and the merger itself; "Here, j2 relies on the common interest doctrine to shield communications with two entities when it faced no litigation, no impending threat of litigation, and which do not provide any form of legal service as their business.")

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal CA B 614

Chapter: 20.504
Case Name: O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014)
September 3, 2014 (PRIVILEGE POINT)

“New Jersey Supreme Court Recognizes the Common Interest Doctrine: Part I”

Most federal courts recognize the common interest doctrine, which can avoid a waiver when separately represented clients who are in or anticipate litigation share communications protected by the attorney-client privilege. The New Jersey Supreme Court finally recognized the doctrine in O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014).

The court acknowledged that "[o]utside of New Jersey, . . . courts vary in their analyses of the common interest rule, resulting in less certainty concerning its application." Id. at 314. Among other things, the court pointed to federal and states courts' disagreement about the following issues: (1) the required level of "anticipation" of litigation; (2) the required similarity of interest among the participants; and (3) the doctrine's applicability to communications that do not involve all participants' lawyers. The court ultimately adopted a common interest doctrine that (1) applies in connection with "actual or anticipated litigation"; (2) can protect communications among participants who share a "common purpose" (because "the common interest need not be identical"); and (3) can protect communications between "counsel for one party and a representative of another party." Id. at 317.

The New Jersey Supreme Court's recognition of the common interest doctrine comes as good news. However, the court's catalogue of variations among other courts' application of the doctrine highlights its uncertainty. Next week's Privilege Point discusses two other aspects of the New Jersey Supreme Court's decision — one of which is unique to New Jersey, and one of which is not.

Case Date Jurisdiction State Cite Checked
2014-01-01 State NJ
Comment:

key case


Chapter: 20.504
Case Name: Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2013-12-31 Federal IN
Comment:

key case


Chapter: 20.504
Case Name: Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML; 2013 U.S. Dist. LEXIS 181690, at *5, *5 6, *8, *11, *11-12, *13-14, *17-19 (S.D. Ind. Dec. 31, 2013)
(analyzing the common interest doctrine; explaining that plaintiff Ducker formerly worked at Best Western (BWI), and sued Best Western's board chairman (Amin) for defamation after disclosure of an internal management report call the PACE report (which contained allegedly defamatory statements about Ducker, who at that time owned a company supplying services to Best Western); noting that Amin suggested that Ducker obtain a copy of the report from Andre Worthy, a current Best Western employee; further noting that Worthy hired his own lawyer in connection to Best Western's investigation into the PACE report; "On June 8, 2012, Mr. Worthy retained counsel to advise him with respect to BWI's investigation surrounding the dissemination of the PACE report, based on his concerns that his employment might be in jeopardy and that he might be unfairly targeted for having uncovered fraud in the PACE report."; explaining that "[i]n early July 2012, Ms. Ducker's and Mr. Worthy's respective legal counsel entered into a 'Shared Work Product Agreement' because their clients were being investigated by BWI regarding the PACE report and its alleged improper disclosure, particularly to Ms. Ducker as an outsider. This Agreement has not been provided to the court, but the court accepts that Ms. Ducker's and Mr. Worthy's respective counsel entered into an agreement documenting the belief that Ms. Ducker and Mr. Worthy shared a common interest in proving Mr. Amin's true role in connection with the sharing and dissemination of the PACE report and to defend against allegations of their own wrongdoing."; explaining Ducker's company later sued Best Western, although the loss did not concern the PACE report, and Best Western sought discovery of communications between Ducker and Worthy in that lawsuit; noting that "Ms. Ducker, her company, and BWI eventually settled their disputes, including any claims stemming from Ms. Ducker's role in obtaining and sharing the PACE report. Mr. Worthy and BWI also, at some point, resolved any potential litigation over Mr. Worthy's role."; "Ms. Ducker contends that because she and Mr. Worthy shared a 'common interest,' all communications since June 8, 2012 (the date Mr. Worthy retained counsel and his lawyer and Ms. Ducker's lawyer apparently first communicated) are protected from disclosure under a common interest privilege. She maintains that the common interest privilege protects not only communications between her counsel and Mr. Worthy's counsel, but also communications between her and Mr. Worthy. She seeks a protective order forbidding Mr. Amin from discovering the contents of all of these communications, whether in a deposition setting or through the production of documents."; finding that Ducker and Worthy shared a common interest as of a certain time; "As to the requirement that the communicating parties share a common interest, the court is persuaded that Ms. Ducker and Mr. Worthy did share a common interest as of June 8, 2012. Their common interest lay in discrediting -- in the context of potential legal action against them by BWI -- Mr. Amin's version of the circumstances under which Mr. Amin obtained the PACE report and learned from Mr. Worthy or Ms. Ducker information about the alleged false or fraudulent contents of the PACE report."; concluding that the common interest essentially evaporated when either Ducker or Worthy no longer faced possible liability; "Their common interest ended though, at least as early as (a) Ms. Ducker's settlement agreement with BWI, which terminated the possibility of potential legal action against her or (b) Mr. Worthy's agreement with BWI, which ended the possibility of any adverse action against him based on the PACE report. From that point forward -- though the court does not know when that point occurred -- one of them no longer faced potential liability or other adverse consequences from BWI, and their common interest dissipated. No longer did they have a reason to engage in new communications for the purposes of protecting common legal interests and obtaining legal advice in pursuit of their common interest."; rejecting Amin's argument that the common interest doctrine did not protect earlier communications taking place when Ducker and Worthy shared a common interest; agreeing with Amin that a lawyer had to be involved in protected common interest communications; "This court agrees with Mr. Amin and finds that protecting from disclosure communications between Ms. Ducker and Mr. Worthy is not necessary to further or achieve the interests the attorney-client privilege is designed to foster. Allowing Ms. Ducker and Mr. Worthy to communicate in secret, including about critical facts at issue in this case, is too broad a constraint on the 'search for truth' when each was represented by counsel who could conduct all communications truly necessary in furtherance of the matters in which they shared a joint legal interest."; "Whatever the need for clients who share the same counsel to be able privately to discuss between themselves their counsel's legal advice and mental impressions, there is no similar need when persons are represented by different legal counsel to whom each ultimately looks for his or her own separate legal advice. In the setting where persons do not share the same counsel, the participation in the communication of at least one of the person's legal counsel appropriately limits the common interest privilege to those situations that serve the goals of the attorney-client privilege with the least impingement of the 'right to every person's evidence.'. . . When a lawyer is involved in the communication, the judicial system gains confidence that the communication concerned a subject actually within the common interest of the clients and occurred because a legal advisor believed the communication was reasonably necessary to further the provision of legal advice connected to the joint interest.")

Case Date Jurisdiction State Cite Checked
2013-12-31 Federal IN B 5/14

Chapter: 20.504
Case Name: Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), MDL No. 1616, Case No. 04-MD-1616-JWL, 2013 U.S. Dist. LEXIS 128353, at *34-35, *37 (D. Kan. Sept. 5, 2013)
(holding that defendant Dow's disclosure of work product to a lawyer for a former Dow employee waived the work product doctrine, because the former employee did not anticipate litigation and therefore could not participate in a common interest agreement; not addressing the work product waiver standard; "Here, Dow [defendant] and Barbour [former employee] were not co-defendants -- Barbour is not, and never was, a party to this case -- and Dow has failed to explain how the two might have been engaging in a joint-defense effort or how the Ella [Barbour's former lawyer] memorandum was written to further that effort. Dow notes that Barbour and Dow had entered into a 'confidentiality and joint defense agreement,' but simply pointing to such an agreement in no way satisfies Dow's burden of demonstrating the two required elements for establishing the privilege are met. The court has reviewed the joint-defense agreement, which largely contains boilerplate language. Although the agreement recites that counsel 'believe they have a mutual interest in common and joint defense issues,' Dow has not explained what that interest is or was. There is nothing in the agreement itself -- or in anything provided to the court -- that establishes that Barbour was or could have been a likely defendant in this litigation such that there was an actual joint-defense interest at stake." (footnotes omitted); 'While it might be true that Dow and Barbour had an identical (albeit, general) interest in ensuring that Ella was prepared to defend Barbour's deposition, can this be said to be a 'legal interest' of the type protected by the common-interest doctrine? Dow has failed to cite a case (or even make any argument to the court) that would answer this question in the affirmative.")

Case Date Jurisdiction State Cite Checked
2013-09-05 Federal KS B 4/14

Chapter: 20.504
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *16 (D. Md. Aug. 16, 2013)
(holding that the common interest doctrine protected communications among family members; "As for whether 'the communicating parties shared an identical legal interest,'. . . every member of the Ngoubene family shares a common legal interest as either a target or potential target of Plaintiff's allegations. While François, Marie-Thérèse, and Collins Ngoubene are currently excused from liability, they could be re-exposed to Plaintiff's litigation should their diplomatic immunity be lost.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 20.504
Case Name: National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc, No. 650515/2010, 2013 NY Slip Op. 31967(U), at 9 (N.Y. Sup. Ct. Aug. 15, 2013)
("New York courts have consistently found that it [common interest] is limited to where the parties reasonably anticipate, or are currently engaged, in litigation.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 4/14

Chapter: 20.504
Case Name: National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc, No. 650515/2010, 2013 NY Slip Op. 31967(U), at 9-10, 10 (N.Y. Sup. Ct. Aug. 15, 2013)
("[W]hile the common interest privilege is an extension of the attorney-client privilege, it follows the contours of the trial preparation materials and work product protections in that it requires litigation or its anticipation. And, an insurance company cannot claim that it anticipates litigation until it makes a firm decision to deny coverage."; "Therefore, although no court has addressed this specific issue, it logically follows that insurance companies must decide to deny coverage before they may invoke the common interest privilege and protect their communications with third parties from disclosure.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 4/14

Chapter: 20.504
Case Name: Nat'l Union Fire v. TransCanada Energy USA, Inc., Index No. 650515/10, 2013 N.Y. Slip Op. 31967(U), at 9-10 (N.Y. Sup. Ct. Aug. 15, 2013)
("New York courts have consistently found that [the common interest doctrine] is limited to where the parties reasonably anticipate, or are currently engaged, in litigation. . . . [W]hile the common interest language privilege is an extension of the attorney-client privilege, it follows the contours of the trial preparation materials and work product protections in that it requires litigation or its anticipations. And, an insurance company cannot claim that it anticipates litigation until it makes a firm decision to deny coverage.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 7/14

Chapter: 20.504
Case Name: JCP Merger Sub LLC v. Baker Eng'g & Risk Consultants, Inc., Civ. A. No. 12-2825 (MAS), 2013 U.S. Dist. LEXIS 84979, at *6 (D.N.J. June 18, 2013)
("[W]hen two parties are prospective co-defendants in an anticipated litigation, there is an exception to this general rule.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NJ B 4/14

Chapter: 20.504
Case Name: Keaton v. Hannum, No. 1:12-cv-00641-SEB-MJD, 2013 U.S. Dist. LEXIS 60519, at *25-26, *26 (S.D. Ind. Apr. 29, 2013)
(holding that defendant's disclosure of work product to a Bar Disciplinary Committee to which she complained about plaintiff lawyer waived the work product protection, because there was no common interest between the defendant and the bar, and because making work product available to the bar made it possible for the plaintiff to obtain access to the materials because of the bar's duty to provide exculpatory evidence; "Zook has no legal interest in the outcome of the Disciplinary Commission case against Keaton. Likewise, the Disciplinary Commission has no legal interest in the outcome of Keaton's civil complaint against Zook. . . . The parties have expressed no concern that the Disciplinary Commission could be made a defendant to the Keaton/Zook case and likewise, the parties have not indicated that Zook could be made a defendant to the Disciplinary Commission complaint against Keaton. As a result, no common legal interest exists between Zook and the Disciplinary Commission that would protect documents exchanged between them that are work product."; "Because no common legal interest exists between Zook and the Disciplinary Commission, the act of sharing allegedly protected documents waived any protection the documents and communications may have had.")

Case Date Jurisdiction State Cite Checked
2013-04-29 Federal IN B 7/13

Chapter: 20.504
Case Name: Smedley v. Lambert, No. 3:12-0003, 2013 U.S. Dist. LEXIS 45460, at *5-6 (M.D. Tenn. Mar. 29, 2013)
("The proponent of the common interest privilege has the burden of establishing the necessary elements of privilege. . . . To carry this burden, the proponent must demonstrate: (1) that the otherwise privileged information was disclosed due to actual or anticipated litigation, (2) that the disclosure was made for the purpose of furthering a common interest in the actual or anticipated litigation, (3) that the disclosure was made in a manner not inconsistent with maintaining its confidentiality against adverse parties, and (4) that the person disclosing the information has not otherwise waived the attorney-client privilege for the disclosed information.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal TN B 3/14

Chapter: 20.504
Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 296 (N.Y. App. Div. 2013)
("This Court has held that application of the common-interest privilege further requires that the communication be made 'in reasonable anticipation of litigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State NY B 3/14

Chapter: 20.504
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "Egiazaryan argues that he and BGR [public relations agency] had a common interest in 'protecting [his] legal interests' and 'formulating a legal strategy on [his] behalf . . . .' Opp. at 13. But the doctrine does not contemplate that an agent's desire for its principal to win a lawsuit is an interest sufficient to prevent waiver of privilege inasmuch as it does not reflect a common defense or legal strategy. . . . BGR is not a party to any of Egiazaryan's various lawsuits and thus has no need to develop a common litigation strategy in defending those lawsuits. Indeed, it makes no suggestion that it had a need to do so.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 20.504
Case Name: JTR Enters., LLC v. An Unknown Quantity of Columbian Emeralds, 297 F.R.D. 522, 528 (S.D. Fla. 2013)
("[S]haring a desire to succeed in an action is not enough to create a common interest where there was no evidence of an agreement, the third-party was never party to the action, and the third-party never exercised control over or contributed to legal expenses.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 5/14

Chapter: 20.504
Case Name: BSP Software, LLC v. Motio, Inc., No. 12 C 2100, 2013 U.S. Dist. LEXIS 95511 (N.D. Ill. July 9, 2011)
(rejecting the functional equivalent doctrine; "To be sure, disclosure to a third party does not waive the privilege where the parties are linked by a common interest. [Beneficial Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 215 (N.D. Ill. 2001)] However, for that exception to waiver to apply, BSP would have to show that it had a common interest with the advisory board that 'relate[s] to a litigation interest, and not merely a common business interest.' Id. at 216. BSP's submissions establish precisely the contrary. BSP went to the advisory board to get its business advice.")

Case Date Jurisdiction State Cite Checked
2011-07-09 Federal IL B 4/14

Chapter: 20.504
Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)
(holding that the work product doctrine protected a post-accident investigation after a cruise line passenger died in a zip line accident that was operated by an excursion company; also holding that the cruise line and the excursion had a common interest that allowed them to share the work product without waiving that protection (although inexplicably failing to explain that such a common interest is not necessary to avoid waiving work product in that situation; "The Tabyana Incident Report is also protected from disclosure because of the joint defense theory which extends work product protection to documents shared between entities who have a common interest in the outcome of litigation. In this case, there can be little argument that at the time that the Tabyana Incident Report was prepared and provided to NCL, NCL and Tabyana had a common interest in defending any claim related to the incident. Thus, despite Plaintiff's arguments to the contrary, the fact that Tabyana was not ultimately named in this suit, and the fact that NCL has asserted that Tabyana bears full responsibility, does not change their common interest at the time the report was shared with NCL. If the position Plaintiff urges is adopted, then litigants could always obtain joint defense materials that were shared confidentially between aligned potential or actual parties by either dismissing one party from the case, or not naming all of the possible defendants to a particular action. Similarly, the fact that Tabyana Tours arguably cannot now be named as a defendant in this litigation because the statute of limitations has elapsed does not lift the work product protection veil from the Tabyana Incident Report."; "Further, there is no evidence that Tabyana Tours knew at the time that it prepared the Incident Report that it would not be sued in the instant or other litigation related to the incident. . . . Therefore, the undersigned concludes that the Tabyana Incident Report is not subject to disclosure because it was prepared in anticipation of litigation and was provided to NCL by Tabyana as an entity with a common interest in the outcome of the instant litigation.")

Case Date Jurisdiction State Cite Checked
2009-11-06 Federal FL
Comment:

key case


Chapter: 20.504
Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 572 & n.12 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured patient in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); "The 'common interest' doctrine applies to actual or potential parties in a civil action: 'persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.' Hicks v. Commonwealth, 17 Va. App. 535, 537, 439 S.E.2d 414, 10 Va. Law Rep. 789 (1994) (quoting In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990)."))

Case Date Jurisdiction State Cite Checked
2009-01-01 State VA B 3/16

Chapter: 20.504
Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 572 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured patient in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); ultimately concluding that the doctor and the new employer's president/CEO did not share a common interest; "In this case, Defendant and Dr. Polverino are not co-defendants. Additionally, PCA and Dr. Polverino are not potential parties in this civil action because this suit is covered by a claims made policy issued to PCA. Thus, the 'common interest' doctrine does not apply."; also finding that the new employer's president/CEO did not enjoy an attorney-client relationship with the doctor's lawyer, and was not the doctor's agent for purposes of the attorney-client privilege)

Case Date Jurisdiction State Cite Checked
2009-01-01 State VA
Comment:

key case


Chapter: 20.504
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 73 (E.D. Va. 1998)
("Even under this expansive reading of the privilege, however, the court holds that CBN cannot take advantage of the common interest privilege in relation to its communications with Ralph Reed. In every case cited by the Fourth Circuit to support its broad reading of the privilege in Under Seal, both parties claiming the common interest privilege were involved in some type of litigation. It is true that the prospect for litigation could be so remote that it involved 'potential co-parties to prospective litigation,' but the prospect of litigation still had to be there." (citation omitted); finding the common interest doctrine inapplicable), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA B 3/16

Chapter: 20.504
Case Name: Cluverius v. James McGraw, Inc., 44 Va. Cir. 426, 430 (Va. Cir. Ct. (Richmond) 1998)
(apparently holding that only a party to litigation can participate in the valid common interest arrangement, but explaining that the work product doctrine might apply; "Because the defendants McGraw, Sydnor, and Valley Forge have similar interests in their defenses to plaintiff's claims, they should be free to communicate among themselves, through counsel, about those concerns. However, although Fleet may share common interests with the defendants, it is not a 'party' to this litigation. Disclosures by counsel for McGraw, Sydnor, or Valley Forge to counsel for Fleet are not protected by the common interest doctrine but are safeguarded by the work product doctrine. The work product protection exists.")

Case Date Jurisdiction State Cite Checked
1998-01-01 State VA B 3/16
Comment:

key case


Chapter: 20.505
Case Name: In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018)
February 13, 2019 (PRIVILEGE POINTS)

"Courts Take Expansive View of the Common Interest Doctrine"

Under the common interest doctrine, separately represented clients can avoid the normal waiver implications of disclosing privileged communications to third parties. Unfortunately, some courts do not recognize the doctrine, and most courts take a very narrow view – requiring that the common interest participants be in or anticipate litigation.

But some courts take an expansive view. In In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018), the court held that two companies considering a merger could rely on the common interest doctrine to safely share privileged communications about patent litigation involving one of the participants. Interestingly, the court did not point to the work product doctrine – which clearly would have covered the "litigation summar[ies]" the merging companies shared, and which would have survived such disclosure to a friendly third party. One day later, the court in AgroFresh Inc. v. Essentiv LLC, Civ. A. No. 16-662-MN-SRF, 2018 U.S. Dist. LEXIS 213204 (D. Del. Dec. 11, 2018), similarly held that a patent licensor and an exclusive licensee shared a common interest. The adversary argued that a patent licensee's interest is not "truly identical" to a licensor's interest, because "the licensee is free from the obligation to pay royalties on sales of the product if the patent is invalidated." Id. at *14. The court relied on earlier decisions in explaining that "licensors and exclusive licensees of patent rights are understood to share an identical legal interest in obtaining strong and enforceable patents." Id.

Expansive cases like this frequently generate hope that other courts will expand the common interest doctrine to transactional settings. But few courts have moved in that direction.

Case Date Jurisdiction State Cite Checked
2018-12-10 Federal MA
Comment:

key case


Chapter: 20.505
Case Name: Estate of Chance Aaron Nash v. City of Grand Haven, No. 336907, 2017 Mich. App. LEXIS 1545 (Mich. App. Oct. 10, 2017)
(holding that the City (which was not a party in the litigation) could assert a common interest agreement with a defendant employee; "In this case, even though the city was not named as a defendant in the underlying tort litigation, a primary issue in that litigation has been determining the ownership of Duncan Park and the nature of the city's relationship to Duncan Park."; "[T]he record supports the conclusion that the city shared with all of the defendants in the underlying tort action a common legal interest in matters related to the operation, use, maintenance, and protection of Duncan Park for the benefit of the people of Grand Haven and that the city and the tort defendants were involved in a joint effort to prevent or limit liability from attaching to the parties involved in the operation of Duncan Park.")

Case Date Jurisdiction State Cite Checked
2017-10-10 Federal MI
Comment:

key case


Chapter: 20.505
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "At the time of the email communications, all parties had or were preparing to assert legal claims against Wakaya. Youngevity and Wakaya were already engaged in litigation. Livewell and Anson were preparing to assert their claims against Wakaya in the Notices that were sent two days later, on December 16, 2016. Accordingly, counsel for Youngevity, Livewell and Anson shared legal advice related to their common legal claims against Wakaya. The parallels between the Notices and Youngevity's allegations in the instant litigation evidence this common legal strategy."; "[W]hile Anson's position as an officer of Wakaya meant he had some interests that were adverse to Youngevity, it does not establish that Anson was adverse to Youngevity in all respects. Wakaya presents no evidence that Anson took any action adverse to the common legal strategy agreement between Youngevity, Livewell and Anson. To the contrary, the record shows that at the time of the email correspondence at issue, Anson was actively working to sever all ties with Wakaya by drafting the Notices and seeking legal advice on separation as an employee of Wakaya. Although Anson and Youngevity may not have had 'identical interests and may even have [had] some adverse motives,' the record shows they shared a common legal interest in asserting common claims against Wakaya."; "Accordingly, the Court concludes that Youngevity did not waive work product protection by forwarding work product to counsel for Livewell and Anson because the parties shared a common legal interest.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.505
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "The 'common interest' or 'joint defense' doctrine is an exception to the general rule that disclosure of protected material to third parties constitutes a waiver. . . . The exception is available regardless of whether litigation has actually commenced.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.505
Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("Broadly speaking, under federal law there are two approaches to the 'common interest' exception. The first is to require that the client and third party have a legal interest in common, as opposed to a merely commercial interest."; "The second approach to 'common interest' requires only that the 'third party and the privilege holder are engaged in some type of common enterprise and that the legal advice relates to the goal of that enterprise.'"; "Mr. Al-Saleh's disclosures to Burford were necessary to obtain informed legal advice, specifically advice as to how to prosecute a collection action against IOTC USA and how to fund that action. Mr. Al-Saleh, his counsel, and Burford did not intend to disclose their communications to third parties. The information exchanged between the parties was for the limited purpose of assisting in their common cause, which was to propound litigation to collect on a claim against IOTC USA."; "The Court rules that all communications among Burford, Mr. Al-Saleh, and his counsel are protected from discovery as they are subject to the attorney-client privilege as a result of application of the common interest exception. The Third Motion to Compel is thus subject to denial to the extent it seeks an order directing the delivery of such documents. This basis, alone, is sufficient for such relief.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal FL
Comment:

key case


Chapter: 20.505
Case Name: Welby, Brady & Greenblatt, LLP v. United States Dept. of Health and Human Services, No. 15-cv-195 (NSR), 2016 U.S. Dist. LEXIS 56605 (S.D.N.Y. April 27, 2016)
("The Marquis Declaration establishes that HHS, DOS, and EOC Nassau shared a common legal interest in ensuring that the Judgment is not satisfied with federal grant money administered by HHS and DOS. . . . Furthermore, the Government's Vaugh index evidences that communications between HHS, DOS, and EOC Nassau concerned a joint litigation strategy with respect to ensuring the Judgment is not satisfied with federal grant funds.")

Case Date Jurisdiction State Cite Checked
2016-04-27 Federal NY

Chapter: 20.505
Case Name: Atlantis Consultants Ltd. Corp. v. Terradyne Armored Vehicles, Inc., Civ. No. 1:15-cv-439-CMH-MSN, 2015 U.S. Dist. LEXIS 169152 (E.D. Va. Dec. 16, 2015)
(analyzing the common interest doctrine; "Plaintiff next argues that the relationship between Defendant and SafeCage is not such that would give rise to the common interest privilege because 'SafeCage is not a party to this litigation, and has not been served with any discovery or process,' and there has not 'been any threat that SafeCage would be added as a party to this litigation or otherwise sued by Atlantis.'. . . Plaintiff accuses SafeCage of tortious activity within pages of claiming that there is no 'threat' of legal action against SafeCage in connection with this matter. . . . A reasonable observer could therefore infer that there exists a realistic threat of legal action against SafeCage."; "Regardless, Plaintiff's assertion that 'actual pending or threatened litigation' is 'a prerequisite' to the common interest privilege, Rep. in Supp. Of Mot. To Compel (Dkt. No. 183) at 2-5, is inconsistent with Fourth Circuit precedent and belied by "[t]he weight of authority" among courts holding that "litigation need not be actual or imminent for communications to be within the common interest doctrine.'. . . For example, in In re Grand Jury Subpoenas [In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990)], 902 F.2d at 249, the Fourth Circuit applied the common interest privilege to a corporation and its former subsidiary where there was clearly no pending or threatened litigation as to the latter."; "[T]he nature of Plaintiff's claims demonstrate a threat that Plaintiff could taking legal action against SafeCage in connection with this matter. Moreover, the close alignment of Defendant's and SafeCage's interests with respect to this litigation brings their relationship within the ambit of cases like In re Grand Jury Subpoenas [In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990)] and Hunton & Williams [Hunton & Williams v. U.S. Dep't of Justice, 590 F.3d 272, 277 (4th Cir. 2010)]; should Defendant lose this case, its arrangements with SafeCage would be compromised, leaving SafeCage unable to meet its obligations to third parties. Indeed, Plaintiff's own description of Defendant's joint prosecution of its defense with SafeCage supports finding that the common interest privilege applies."; "The record also strongly suggests that a meeting of the minds as to the parties' joint interest in this litigation occurred at the same point. Indeed, it is difficult to imagine that Defendant and SafeCage would not recognize their common interest upon the filing of a lawsuit accusing both parties of tortious activity in connection with their joint venture.")

Case Date Jurisdiction State Cite Checked
2015-12-16 Federal VA
Comment:

key case


Chapter: 20.505
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("Parties may share a 'common legal interest' even if they are not parties in ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 20.505
Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)
(holding that a relator's disclosure statement to the government deserved at least fact work product protection; noting that the Fifth Circuit had not decided whether the opinion work product doctrine applied as well; "The Court finds that the disclosure statements submitted to the Government by Relators pursuant to 31 U.S.C. § 3730(b)(2) constitute at least ordinary work product for the purposes of the work product doctrine. Public policy favors the full and frank communication between Relators and the Government concerning the prosecution of the case, and as such, the communications must be protected from disclosure. Therefore, protection was not waived when Relators disclosed the information to the Government as the common-interest doctrine applies.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal TX

Chapter: 20.505
Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(analyzing the common interest doctrine; "The doctrine can apply to privileged information shared between parties or, under some circumstances, between a party and a non-party.")

Case Date Jurisdiction State Cite Checked
2015-06-18 Federal IL

Chapter: 20.505
Case Name: Terra Foundation for American Art v. Solomon+Bauer+Giambastiani Architects, Inc., Case No. 14 C 3012, 2015 U.S. Dist. LEXIS 56471 (N.D. Ill. April 29, 2015)
(finding the common interest doctrine must relate to "a litigation interest"; "SBG and Exergen had a business relationship in which Exergen performed mechanical engineering services as SBG's sub-consultant in the design of the art vaults for Terra. . . . Prior to the allegedly privileged communications between SBG and Exergen, Terra raised concerns with SBG about the design and function of the art vaults. After Terra raised those concerns, SBG had communications with its counsel and Exergen's president was copied. SBG argues that once Terra communicated to SBG that Terra would pursue legal remedies against SBG for alleged defects in the art vaults, it was reasonable for SBG and Exergen to jointly consult SBG's counsel regarding their mutual concerns about the potential threat of litigation."; "In this case, the Court finds that SBG and Exergen similarly share an identical legal interest. . . . Even though Terra's threat of litigation was directed only to SBG, it certainly was reasonable to assume that the mechanical engineering consulting services Exergen provided in the design of the art vaults potentially could be implicated by Terra's complaints of alleged defects in the work SBG performed on the art vaults.")

Case Date Jurisdiction State Cite Checked
2015-04-29 Federal IL
Comment:

key case


Chapter: 20.505
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "'It is of no moment that the cases are separate, since the 'common interest' doctrine is not limited to formal parties to litigation.'")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.505
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *12 (N.D. Cal. Mar. 17, 2014)
(analyzing the common interest doctrine; "[T]he joint defense theory can extend to 'interested third parties who have a community of interests with respect to the subject matter of the communications.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 20.505
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *16 17, *20-21 (N.D. Cal. Mar. 17, 2014)
(analyzing the common interest doctrine; "The court has reviewed these emails in camera and determined that they are protected by the joint defense privilege. At time the emails were sent, Hayes Scott was representing two neighbors against whom Plaintiff had filed petitions for restraining orders and Michael Allen was representing a third. While Plaintiff had not filed a petition against Scott Armstrong, (HSP's client and another of Plaintiff's neighbors), Hayes Scott avers that Plaintiff had made allegations against Armstrong, and Armstrong believed he would soon be targeted by Plaintiff. Thus the neighbors' attorneys had reasons to work together toward a common objective, i.e. defending against a legal campaign that Plaintiff had aimed at neighbors who testified against him in his criminal trial, or were otherwise supportive of the criminal prosecution. That there is no written agreement memorializing a joint defense agreement is of no moment, as a joint defense may be implied from the situation and the context of the emails. The emails pertain to the matter in which the parties have a joint legal interest, and the communication is designed to further that specific legal interest."; "[T]he clients of Hayes Scott, HSP, and Michael Allen have a joint interest in defending themselves against Plaintiff's various actions. This joint defense effort also includes those attorneys' decision to reveal Plaintiff's alleged misbehavior to the RCPD, which is premised on supposedly false police reports about the same underlying events that form the basis of Plaintiff's petitions for restraining orders. This is ample basis for implying a joint defense, even in the absence of a written joint defense agreement. Accordingly, Plaintiff's motion to compel the production of this document is denied.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 20.505
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *12 (N.D. Cal. Mar. 17, 2014)
(analyzing the common interest doctrine; "In order for the joint defense theory to apply, there need not be actual litigation.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 20.505
Case Name: Love v. Permanente Med. Grp., No. C-12-05679 DMR, 2014 U.S. Dist. LEXIS 22243, at *6 (N.D. Cal. Feb. 19, 2014)
("In order for the joint defense theory to apply, there need not be actual litigation.")

Case Date Jurisdiction State Cite Checked
2014-02-19 Federal CA B 7/14

Chapter: 20.505
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *7 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "The common interest doctrine also can be applicable to communications between a party and a non-party, including communications between a government agency and aggrieved individuals on whose behalf the government brings suit. For example, courts have applied the common interest doctrine in cases involving the Fair Housing Act and Equal Employment Opportunity Commission, despite the fact that the aggrieved persons were not represented by counsel nor were the individuals parties to the lawsuits in question.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 6/14

Chapter: 20.505
Case Name: In re Application of Tinsel Grp., S.A., Misc. A. No. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *7-8, *9, *9-10 (S.D. Tex. Jan. 22, 2014)
(analyzing the common interest doctrine; "Respondents do not, and cannot, assert that their communications are protected under the former category because of all of the respondents, only Planck is a party in the Dutch Litigation. Rather, respondents claim that they all share a common legal interest in the Dutch Litigation, despite being non-parties in that case."; "Tinsel seeks documents exchanged between or among respondents or their attorneys from 2005 to the present. The Dutch Litigation did not commence until October 2011, and the Common Interest Agreement did not take effect until March 31, 2011. Temporal length between the majority of documents sought by Tinsel and the prospect of litigation is too great for the court to consider all the documents pre-dating the Common Interest Agreement to be covered by the common interest privilege."; "Further, the fact that all of the respondents (besides Planck) are not even co-defendants in the Dutch Litigation make the respondents' reliance on the common interest privilege even more tenuous. Because the Tinsel subpoenas seek documents that were disclosed to other entities or their counsel, such documents are not privileged on the basis of the common interest privilege until litigation became a palpable reality. . . . Respondents concede that they did not anticipate the Dutch Litigation until January 2011. Therefore, documents exchanged between or among the respondents prior to that date are not privileged.")

Case Date Jurisdiction State Cite Checked
2014-01-22 Federal TX B 6/14

Chapter: 20.505
Case Name: Hanwha Azdel, Inc. v. C&D Zodiac, Inc., Civ. A. No. 6:12-CV-00023, 2013 U.S. Dist. LEXIS 157187, at *1-2, *4 (W.D. Va. Nov. 1, 2013)
("Plaintiff asserts that Crane [non-party] is not entitled to withhold 26 documents and redact 4 documents involving e-mail between Crane and SABIC, which is yet another non-party to this litigation (but which is involved in arbitration with Plaintiff in Massachusetts). However, Plaintiff is mistaken in its assertion that, in order to claim the common interest privilege, Crane was required to provide details of a 'joint legal strategy' with SABIC. The common interest privilege applies, among other situations, to 'potential co-parties to prospective litigation,' such as Crane and SABIC." (citation omitted); "In March 2011, SABIC received a letter from Plaintiff. The letter outlined claims that Plaintiff might bring against SABIC. As described in the letter, Plaintiff's claims implicated Crane's legal interests, and it appeared that Crane potentially could be a witness or even a party to litigation or arbitration initiated by Plaintiff. Crane and SABIC concluded that they shared a common legal interest arising from Plaintiff's assertions, and entered into a common interest agreement, which was thereafter memorialized in writing.")

Case Date Jurisdiction State Cite Checked
2013-11-01 Federal VA B 5/14

Chapter: 20.505
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("In addition to arguing unpersuasively that there is no common interest between the Army and Clark, which is addressed, supra, Pinnacle's sole argument with respect to the Army's invocation of the attorney-client privilege for Category B documents is that even if there were a common interest, the attorney-client privilege cannot apply to correspondence and memoranda sent between Army personnel and Clark attorneys, or vice-versa, because there is no attorney-client relationship. This argument fails; the core of the common interest doctrine is that it extends privileges, such as the attorney-client privilege, to encompass communications with third parties. See U.S. v. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996) (common interest doctrine is 'an extension of the attorney-client privilege'). As the Fourth Circuit has explained, 'The purpose of the privilege is to allow persons with a common interest to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.' In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005) (quotations marks and citations omitted).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 20.505
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 875 (E.D. Va. 2012)
(holding that a private company and the Army could enter into a common interest agreement; "[F]or the common interest doctrine to apply, an agency must demonstrate that, at the time of the communication in question, it had decided to support an outside party in a legal matter, and that doing so was in the public interest. . . . In this matter, the Army has demonstrated (i) that it shares a common interest with Clark in connection with the Georgia state action and Clark's legal efforts to replace Pinnacle as property manager, and (ii) that it has determined that replacing Pinnacle is in the public interest.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13
Comment:

key case


Chapter: 20.505
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 877 (E.D. Va. 2012)
("What is relevant is the Army's determination, clearly demonstrated in this record, that based on the evidence Clark adduced, supporting Clark in its legal effort to replace Pinnacle is in the Army's and thus in the public interest. While this determination arose in the context of the Army's contractually-required consent, it is apparent that this consent was not merely the Army's indifferent permission for Clark and Pinnacle to wrangle over profits. Rather, the Army determined replacing Pinnacle is in the interest of the soldiers, the Army, and thus, the public. . . . Importantly, the Fourth Circuit has held that even if Clark is motivated by profits, while the Army is motivated by the public interest, they still share a 'common and unitary' interest if they both seek the same result, in this case success in the Georgia state action and removal of Pinnacle as property manager at Fort Benning and Fort Belvoir. See Hunton & Williams v. United States DOJ], 590 F.3d [272,] 282 [(4th Cir. 2010)].")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 20.505
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 876 (E.D. Va. 2012)
("[T]he Fourth Circuit has made clear that neither a written agreement nor participation in litigation are requirements for invocation of the common interest doctrine. As the Fourth Circuit put it, 'The common interest doctrine requires a meeting of the minds, but it does not require that the agreement be reduced to writing or that litigation actually have commenced.'" (citation omitted); "[T]he Fourth Circuit has found the common interest doctrine applied where only one entity was a named party in the relevant civil litigation. See In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990). In any event, although the Army is not a named party in the Georgia state action, it is a 49% owner of one of the plaintiffs, and thus clearly can be considered a party in interest with respect to that litigation.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA
Comment:

key case


Chapter: 20.505
Case Name: Hunton & Williams v. United States DOJ, 590 F.3d 272, 279, 280, 281, 282, 282-83 (4th Cir. 2010)
(holding that the government could have a common interest with the maker of the BlackBerry Smart Phone, but finding that the district court had extended the common interest doctrine to an improperly early date; remanding for further analysis; analyzing the issue under FOIA and rejecting Hunton & Williams' argument that the FOIA Exemption 5 did not apply; "It would eviscerate the meaning of Exemption 5 if we were to read it to exclude communications between federal agencies and their litigation partners where those communications advance an interest that is both common and, in the government's considered view, critical to the public's interest."; explaining that "[t]he common interest doctrine, it bears adding, is not a privilege in its own right. In re Grand Jury Subpoenas, 902 F.2d [244,] 249 [(4th Cir. 1990)]."; quoting the common interest agreement between the government and the maker of the Blackberry Smart Phones; "The written agreement explains the parties' shared interest in limiting the scope of any injunction in the Blackberry litigation and clearly manifests an agreement to work together toward that end. The agreement stated that the United States government is the single largest user of Blackberry technology, and that '[t]he continued ability to employ those Blackberry systems and devices is considered of sufficient importance to the U.S. as to make necessary the pursuit of this subject through a common interest agreement.' The agreement defined the scope of the parties' common interest clearly, providing, for example, a means to terminate the agreement if the parties came to believe that their interests had diverged. DOJ's decision to intervene in the litigation in February 2006 provides further evidence that it had committed to taking RIM's [maker of the BlackBerry phone; previously found to have infringed on another's patent in making the device] side."; "In short, the Statement makes it abundantly clear that, in partnering with RIM, DOJ was asserting a genuine public interest in seeking to ensure that 'the federal government's right to continue its use of Blackberry devices is not rendered a nullity.'"; ultimately finding a common interest applicable; "Exemption 5 properly applies to communications made pursuant to that agreement. It does not matter that RIM was motivated by the commercial benefit that would accrue to it if it succeeded in opposing the BlackBerry injunction while the government was motivated by concern for the public interest. What matters is that there was a unity of interest in preserving a non-disruptive pattern of governmental BlackBerry use, and RIM and DOJ could rely on one another's advice, secure in the knowledge that privileged communications would remain just that.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal B 5/16

Chapter: 20.505
Case Name: Hunton & Williams v. United States Dep't of Justice, 590 F.3d 272, 284-85, 285, 285, 286, 288 (4th Cir. 2010)
(holding that the government could have a common interest with the maker of the BlackBerry Smart Phone, but finding that the district court had extended the common interest doctrine to an improperly early date; remanding for further analysis; analyzing the issue under FOIA and rejecting Hunton & Williams' argument that the FOIA Exemption 5 did not apply; finding the district court's analysis improper; "This analysis was flawed in two respects. First, although a common interest agreement can be inferred where two parties are clearly collaborating in advance of litigation, mere 'indicia' of joint strategy as of a particular point in time are insufficient to demonstrate that a common interest agreement has been formed. Second, it is not clear that the particular 'indicia' identified by the district court pointed to an actual common interest agreement, as opposed to a mere confidentiality agreement. Hunton contends that the parties exchanged declarations, proposed pleadings, and views as part of the process of persuading DOJ to become involved in the BlackBerry litigation. That contention is entirely plausible, particularly to the extent that the communications were initiated by RIM or flowed primarily from RIM or DOJ. The district court gave no indication that there was anything in the documents themselves that showed them to be part of a joint litigation effort, rather than an attempt by RIM to push its arguments on the government."; "Documents exchanged before a common interest agreement is established are not protected from disclosure. In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005). Thus, a proper assessment of the applicability of the common interest doctrine in this case requires a determination of the point in time when DOJ decided that it was in the public interest for RIM to prevail in its litigation with NTP and agreed to partner with RIM in doing so. The danger in this area is once again that mere lobbying efforts, as opposed to joint litigation strategy, will be removed from FOIA's reach."; "While agreement need not assume a particular form, an agreement there must be. If RIM was simply approaching DOJ over the prospect that there might one day to a joint litigation effort, such contacts and discussions seem too preliminary to remove from disclosure under Exemption 5."; "[T]he parties failed to create a written common interest agreement until November 2005. . . . As DOJ itself notes, Fargo 'routinely' creates common interest agreements and reviews those created by his staff. Yet neither party made any kind of 'common interest' notation on their written communications until October 2005. In addition, while Fargo told his supervisor that he was entering a common interest agreement in November 2005, he told his supervisor only that he and Fenster were exchanging materials 'on a confidential basis' prior to that time."; "In short, there are a number of items in the record suggesting that DOJ may not have decided to partner with RIM in the BlackBerry litigation much more November 2005. The fact that DOJ later concluded it shared RIM's interest does not protect communications between the two before that decision was made. An agreement to hear what RIM had to say and to keep what it heard confidential must not be confused with a conclusion that the public interest taking RIM's side."; "For the foregoing reasons, we affirm the district court's conclusion that privileged communications between DOJ and RIM subsequent to their November 2005 common interest are protected from disclosure by FOIA Exemption 5. We vacate its conclusion that a common interest relationship existed between RIM and DOJ from March 2005 to November 2005. On remand, the district court should determine the point in time when DOJ decided that the public's interest converged with RIM's interest in opposing broad injunctive relief, that it wanted RIM to prevail in its litigation, and that it would assist RIM in doing so.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal

Chapter: 20.505
Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 341 (4th Cir. 2005)
("The joint defense privilege, an extension of the attorney-client privilege, protects communications between parties who share a common interest in litigation. United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. 1989); see also Aramony, 88 F.3d at 1392."), cert. denied, 126 S. Ct. 1114 (2006)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal

Chapter: 20.505
Case Name: Hicks v. Commonwealth, 439 S.E.2d 414, 415, 416 (Va. Ct. App. 1994)
("An attorney may not divulge a professional confidence made to him by his client. This privilege extends to communications among co-defendants and their attorneys when engaged in consultation about their defense. . . . The police charged the defendant and the accomplice with the same crime and each was represented by counsel. The defendant, having not been advised otherwise, reasonably may have thought that he, the accomplice and their attorneys were mutually engaged in the defense of both him and his accomplice. Therefore, the defendant's communications to his accomplice's attorney were shielded by the attorney-client privilege, even though they were not charged with a conspiracy and were not jointly indicted. . . . The presence of another, unrepresented third party at the meeting does not waive the defendant's privilege in this case. Here, the third party, though ultimately not charged, was with the defendant and the accomplice in the apartment with the drugs when the police searched. Thus, she was a potential co defendant and shared an interest in a common defense effort." (citation omitted); finding that the lower court had improperly admitted evidence of a conversation protected by the common interest doctrine between a criminal defendant and an accomplice's attorney)

Case Date Jurisdiction State Cite Checked
1994-01-01 State VA

Chapter: 20.505
Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 248, 249 (4th Cir. 1990)
(holding that a parent and its subsidiary could enter into a common interest arrangement in connection with prosecuting contract claims against the Army and defending counterclaims brought by the Army, even though the subsidiary was not a named party in the claim or the counterclaim because the claim and counterclaim were "joint efforts" on the part of the parent and the subsidiary; explaining that the parent and subsidiary "were engaged in the joint prosecution of a claim against the Army, as well in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; ultimately concluding that a subsidiary could not unilaterally waive the attorney-client privilege or work product doctrine that applied to the pertinent documents; not discussing the general principle allowing one member of a common interest arrangement to control its own documents, and instead finding that the parent could block the former subsidiary's waiver of documents that the subsidiary itself created and thus presumably should have controlled (in contrast to the parent's documents shared with the subsidiary, or the communications between them that were protected by the common interest doctrine))

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 20.505
Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 247, 247-48, 248, 249, 250 (4th Cir. 1990)
(holding that a parent and subsidiary corporation could enter into a valid common interest agreement although the subsidiary was not a named party -- because the subsidiary was the "real party in interest"; concluding that the valid common interest agreement prevented the subsidiary from unilaterally waiving the attorney-client privilege and protected documents relating to the common interest participants' prosecution of a claim against the Army and defense of the Army's counterclaim; agreeing with the district court that the subsidiary could unilaterally control its own privilege once it had been sold to another company, and that the parent had no control over documents created by the subsidiary after it was sold; assessing a situation described more fully in the district court's opinion (In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207 (E.D. Va. 1990)) in which a government grand jury subpoenaed documents relating to possible fraud in connection with a government contract; explaining a company ["Movant"] objected to the grand jury subpoena on attorney-client privilege and work product grounds; explaining that the district court had divided the subpoenaed documents into three categories: (1) documents created by one of Movant's divisions while it was undertaking the contractual work; (2) documents created by the division after it had become a Subsidiary of Movant; and (3) documents created by Subsidiary after Movant had sold controlling interest in Subsidiary to independent investors; noting that the Subsidiary had advised Movant and the government that it wished to cooperate with the grand jury and to produce the responsive documents; [Although not described fully in the Fourth Circuit opinion, the district court found that: (1) as to the Category 1 documents, generated by the division that was then part of Movant, it was "unclear" whether the Subsidiary gained ownership of any privilege covering those documents when the division became a subsidiary, but that it was unnecessary to resolve "this somewhat metaphysical issue" because Movant "permitted at least some of these documents to remain in the Subsidiary's custody and control" after selling the Subsidiary, and therefore "effectively waived its privilege with respect to these documents" meaning that the now-independent Subsidiary could waive the privilege and work product protections as to those documents (734 F. Supp. at 1213); (2) as to the Category 2 documents, generated by Subsidiary when it was owned by Movant, Movant could not block Subsidiary's waiver of those documents in its possession because the "joint defense privilege" did not give both Movant and Subsidiary veto power over the other's waiver the joint defense doctrine did not cover documents created while Movant and Subsidiary were merely "cooperating to assert [Movant's] claim" against the Army in seeking to recover under the underlying government contract; acknowledging that Subsidiary would have received a portion of whatever amount was ultimately recovered from the Army in connection with that claim, but that "[t]o extend the joint defense privilege to non-parties simply because they are financially interested in the litigation stretches the rationale for the privilege beyond its reach" (734 F. Supp. at 1212); and (3) as to the Group 3 documents, created by the newly-independent Subsidiary, finding that Movant had no control over those documents, and Subsidiary could produce them to the government.]; affirming the district court's analysis as to any document not related to what the Fourth Circuit described as "prosecution of the claim against the Army for an equitable adjustment and those prepared for the defense of the counter-claim" which involved "joint efforts on the part of Movant and Subsidiary"; agreeing with Movant that such "claim-related documents are subject to a joint defense privilege that Subsidiary cannot waive without Movant's consent"; acknowledging that Subsidiary "was not named as party in either the civil claim against the Army or in the Army's counter-claim," but finding that "persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims," and thus the common interest doctrine applied to Movant's and Subsidiary's "joint prosecution of a claim against the Army, as well as in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; holding that the district court's ruling was in error because it was "apparently based on the notion that the joint defense privilege is limited to codefendants" [although the district court's opinion instead was based on the fact that Subsidiary was not a party to any litigation, not on the fact that the Subsidiary was not a co-defendant]; in analyzing the Category 1 documents, rejecting the government's argument that the joint defense privilege could not apply because the creating entity was then a division of Movant rather than a separate entity; holding that "[t]he rationale underlying the joint defense privilege focuses not on when documents were generated, but on the circumstances surrounding the disclosure of privileged documents to a jointly interested third party"; explaining that here the disclosure "occurred on the day Movant incorporated Subsidiary as a separate entity," and was made to allow Subsidiary "to continue to participate in the ongoing litigation"; ultimately holding that "all documents that relate to the prosecution of the claim against the Army or to the defense of the Army's counterclaim, and which are subject to the attorney-client or work-product privilege, are subject to a joint defense privilege that Subsidiary may not waive unilaterally"; reversing the district court's opinion to that extent)

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 20.506
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., No. 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631, at *23 (S.D.N.Y. July 23, 2018)
October 3, 2018 (PRIVILEGE POINT)

Courts Continue to Diverge on the Common Interest Doctrine's Dependence on Anticipated Litigation

Most courts apply the common interest doctrine only in litigation-related circumstances, although a few courts extend the doctrine to transactional contexts.

In BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., Judge Netburn could not have been any clearer: "[t]he common interest doctrine only shields communications between codefendants, coplaintiffs, or persons who reasonably anticipate that they will become colitigants." No. 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631, at *23 (S.D.N.Y. July 23, 2018). Two days later, the court in Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018), took a broader view. The court applied the common interest doctrine to communications between two companies that "were together in negotiations with [a third company], and [that] sought and received legal advice about the legal ramifications of aspects of that deal." Id. at *18. Because "the issues addressed in the communications were specific legal issues,” they “do not lose their legal characteristics merely because they arise in the context of a business transaction." Id. at *19.

Companies and their lawyers hoping to maximize privilege protection should welcome these occasional decisions applying the common interest doctrine in transactional rather than just litigation contexts. But they are rare, and companies may not know whether they will be lucky enough to find themselves litigating in those few oases of an expansive common interest doctrine.

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal

Chapter: 20.506
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "'The protection of the privilege under the community of interest rationale, however, is not limited to joint litigation preparation efforts. It is applicable whenever parties with common interests join forces for the purpose of obtaining more effective legal assistance.'. . . Parties may have both common commercial and legal interests, such as when the parties are discussing a merger or negotiating for a patent license.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA

Chapter: 20.506
Case Name: Eagle Forum v. Phyllis Schlafly's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 16618 (S.D. Ill. Feb. 1, 2018)
April 11, 2018 (PRIVILEGE POINT)

"Court Says Anticipated Litigation Unnecessary to Support Common Interest Doctrine Protection"

Despite litigants' and bar groups' valiant efforts to expand common interest doctrine protection to transactional settings, most courts limit that doctrine's protection to ongoing or anticipated litigation contexts. However, every now and then a court takes an expansive view.

In Eagle Forum v. Phyllis Schlafly's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 16618 (S.D. Ill. Feb. 1, 2018), the court addressed common interest doctrine protection for communications related to an ongoing trademark infringement action. Despite the litigation setting, the court explained that "[i]t is well settled that communications need not be made in anticipation of litigation to fall within the common interest doctrine" (citing a 2007 Seventh Circuit case). However, the court still rejected the doctrine's applicability to the communications at issue, holding that: (1) "for the doctrine to apply, the person with whom the privileged information is shared must have an identical – not merely similar – legal interest in the subject matter of the communication"; and (2) the communications "must be made in the course of furthering the ongoing, common enterprise" rather than just amounting to a "shared rooting interest in the successful outcome of a case" in which the participants simply favor one side rather than cooperate in a common legal strategy. Id. at *9. A few weeks later, the district court upheld the magistrate judge's "identical" interest analysis and conclusion – although the court did not address the magistrate judge's dicta about the common interest doctrine's application in non-litigation contexts. Case No. 16-0946-DRH, 2018 U.S. Dist. LEXIS 36393 (S.D. Ill. Mar. 6, 2018).

Litigants relying on the common interest doctrine must continue to be very wary of assuming that they can contractually avoid the waiver implications of disclosing privileged communications to third parties. Many – if not the majority of – cases reject the doctrine's applicability, by which time the participants have already waived their privilege protection by optimistically but erroneously relying on a common interest agreement or the doctrine to avoid a waiver.

Case Date Jurisdiction State Cite Checked
2018-02-01 Federal IL
Comment:

key case


Chapter: 20.506
Case Name: Eagle Forum v. Phyllis Schlafy's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 16618 (S.D. Ill. Feb. 1, 2018)
(finding that the common interest doctrine could protect communications in the absence of anticipated litigation, but that the participants needed to have an identical legal interest; "It is well settled that communications need not be made in anticipation of litigation to fall within the common interest doctrine. [United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007)] However, for the doctrine to apply, the person with whom the privileged information is shared must have an identical — not merely similar — legal interest in the subject matter of the communication, which must be made in the course of furthering the ongoing, common enterprise."; "Defendant's conclusory argument misses the mark. First, Defendant has failed to articulate the precise legal interest that binds the parties in 'Group 2' (aside from 'defeating' the Cori Plaintiffs). Indeed, what Defendant describes appears to be a mere 'rooting interest' among these individuals and entities against the Individual Plaintiffs. While it is apparent that there are disputes concerning the Phyllis Schlafly Family of Marks and the corporate governance of Eagle Forum, the Court is not convinced that the interests of PSAE are clearly aligned with ETF, EFELDF, or PSRT, or any trustee or member of the Board of the same. If they are, Defendant has failed to meet its burden on this point. In particular, with regard to the ownership of the Family of Marks, it appears these entities have taken differing positions. Similarly, there has been no showing of a common legal interest between PSAE or members of its Board of Directors (Kathleen Sullivan, Ed Martin, John Schlafly, Andrew Schlafly, and Phyllis Schlafly at the time this lawsuit was filed) and the other individuals identified by Defendant in 'Group 2' (Bruce Schlafly, Liza Forshaw, or Ned Pfeifer).

Case Date Jurisdiction State Cite Checked
2018-02-01 Federal IL

Chapter: 20.506
Case Name: Steward Health Care System, LLC v. Blue Cross and Blue Shield of Rhode Island, C.A. No. 13-405S, 2016 U.S. Dist. LEXIS 127543 (D.R.I. Aug. 4, 2016)
(finding a common interest agreement effective among parties to a transaction; "BCBSRI contends that parties to an acquisition do not share the requisite common legal interest to avoid waiver of shared privileged communications. It also argues that since Steward and the Special Master had inherently divergent goals, they could not have shared a common legal interest. While it is true that Steward was acting in corporate self-interest and the Special Master was acting in the interest of the creditors and the public, they did share a common legal interest in the operation of Landmark and consummation of the acquisition during the periods when the APAs were in place."; "Here, Steward has shown the presence of a shared common legal interest during the periods that the APAs were in effect. In fact, the Special Master and Steward entered into an Agreement for Advisory Services . . . in which Steward was engaged to 'provide the services of an experienced team of healthcare executives along with such management and services described herein until the consummation of the transactions contemplated in the APA.' Steward also agreed to provide a 'Consultant, as well as an additional number of [Steward's] employees as necessary to provide the management and other services described herein.' In addition, the Special Master authorized Steward, 'on the Owners' behalf, to exercise reasonable business judgment in the discharge of its duties hereunder, including oversight, supervision, and effective management of the day-to-day business operations of the Facilities through the Consultant.' This Agreement reflects an interrelationship and commonality of interest well beyond just being parties to a pending acquisition. While the Agreement does contain a disclaimer of any fiduciary or confidential relationship between Steward and the Special Master, it does so in a boilerplate section entitled 'Independent Contractors' intended to narrow the potential for liability arising out of the cooperative business relationship created by the Advisory Services Agreement. It does not deal with the issue of sharing privileged communications and cannot reasonably be construed as a clear and unequivocal waiver of the attorney-client privilege by Steward.")

Case Date Jurisdiction State Cite Checked
2016-08-04 Federal RI
Comment:

key case


Chapter: 20.506
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
(overturning Judge Gorenstein's order, and finding: (1) that the work product doctrine protects a taxpayer's documents involving the IRS's scrutiny into a deduction; (2) a taxpayer's disclosure of privileged communications to bank Consortium did not waive privilege, because the common interest doctrine applied despite the absence of ongoing litigation; noting that the IRS did not seek documents prepared by the taxpayer's law firm Dentons or shared only with lawyers and Ernst & Young, but sought "('EY Tax Memo') that identified potential U.S. tax consequences of the refinancing and restructuring, identified and analyzed possible IRS challenges to the Schaeffler Group's tax treatment of the transactions, and discussed in detail the relevant statutory provisions, U.S. Treasury regulations, judicial decisions, and IRS rulings."; "[T]he Schaeffler Group faced a threat of insolvency that would in turn cause a default on the Consortium's eleven-billion Euros loan. The Group and the Consortium could avoid this mutual financial disaster by cooperating in securing a particular tax treatment of a refinancing and restructuring. Securing that treatment would likely involve a legal encounter with the IRS. Both appellants and the Consortium, therefore, had a strong common interest in the outcome of that legal encounter."; "[T]he nature and viability of the transaction was driven by U.S. tax law, and both appellants and the Consortium had a common interest in seeing that law applied in a particular way. The documents in question were all directed to the tax issues, a legal problem albeit with commercial consequences, namely the possible insolvency of the Schaeffler Group and its default on the Consortium loan. Appellants' interest was in securing a refinancing. The Consortium's interest was in funding a refinancing that would protect its earlier investment and would itself be repaid, goals dependent on the resolution of legal tax issues. The fact that eleven-billion Euros of sunken investment and any additional sums advanced in the refinancing were at stake does not render those legal issues 'commercial,' and sharing communications relating to those legal issues is not a waiver of the privilege."; "[I]t was the interest in avoiding the losses that established a common legal interest. A financial interest of a party, no matter how large, does not preclude a court from finding a legal interest shared with another party where the legal aspects materially affect the financial interests.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 20.506
Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("The common-interest privilege 'allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others.'. . . The doctrine applies in civil and criminal cases as well as purely transactional contexts. . . . the Court of Appeals has noted that 'members of a community of interest must share at least a substantially similar legal interest.'"; "That their interests are not identically aligned does not eliminate the possibility that the common-interest doctrine could be appropriate.")

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 20.506
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters)

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.506
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *18 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The parties to whom the emails were directed were part of the Offutt organization or an employee of a wholly owned subsidiary of Offutt. The email communications involved legal advice about ongoing litigation. In this case, it would appear that the associational privilege doctrine or the common interest doctrine would be sufficient grounds to maintain the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.506
Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
("Newco and Huawei appear to have had a common interest in obtaining CFIUS approval and seeing the merger to its completion. The two companies, however, had adverse interests both in negotiating the Side Letter and in determining, if necessary, responsibility for the Merger Agreement's termination. Because of their potentially conflicted relationship, the Court will review the challenged communications in camera to determine Newco and Huawei's position vis-à-vis one another at the time each challenged communication was made. If the parties were in common interest with respect to the matters addressed, the communication will remain privileged.")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 20.506
Case Name: In re Teleglobe Commc'ns Corp. v. BCE, Inc., 493 F.3d 345, 364 (3d Cir. 2007)
(explaining the common interest or "community of interest" doctrine; "[T]he community of interest privilege allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others. It applies in civil and criminal litigation and, even in purely transactional contexts.")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal

Chapter: 20.601
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "Acacia [potential buyer] points to (i) the privilege clause contained in each patent sale contract, (ii) the timing of the disclosure, and (iii) the royalty entitlements. The privilege clause, Acacia argues, provides that the disclosure of privileged information between Acacia and the seller 'in furtherance of their common legal interest' does not diminish or waive attorney-client privilege. . . . But mere recital is hardly conclusive or compelling on whether such an interest exists.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY

Chapter: 20.602
Case Name: UnitedHealthcare of Fla. v. Am. Renal Assocs. LLC, Civ. No. 16-cv-81180-Marra/Matthewman, 2017 U.S. Dist. LEXIS 201866 (S.D. Fla. Dec. 7, 2017)
(analyzing the provisions of the common interest agreement and finding the agreement effective; "Mr. Bushofsky [Ropes and Gray lawyer] also represents that the agreement has been in place 'since counsel for the American Kidney Fund and counsel for ARA began communicating regarding this matter after the American Kidney Fund learned of United's lawsuit in July [*11] 2016.'. . . The Court has no reason to doubt the veracity of the correspondence, or of counsel's representations, and Plaintiffs have not provided any evidence whatsoever to contradict Mr. Bushofsky's assertions. All of the communications at issue would be protected under the attorney-client privilege as the common interest exception applies.")

Case Date Jurisdiction State Cite Checked
2017-12-07 Federal FL

Chapter: 20.602
Case Name: UnitedHealthcare of Fla. v. Am. Renal Assocs. LLC, Civ. No. 16-cv-81180-Marra/Matthewman, 2017 U.S. Dist. LEXIS 201866 (S.D. Fla. Dec. 7, 2017)
(analyzing the provisions of the common interest agreement and finding the agreement effective; "Moreover, the Court has reviewed in camera the written common interest agreement between Defendants and Mr. McDonough's counsel, Skadden Arps, Slate, Meagher & Flom LLP. The common interest agreement is dated March 16, 2017, is executed by all parties and appears to be legitimate and applicable to the communications requested by Plaintiffs. The Court has also reviewed in camera the written common interest agreement between Defendants' counsel and Ms. Cordeiro's counsel, Brune Law P.C. That common interest agreement is dated February 3, 2017, is executed by all parties and also appears to be legitimate and applicable to the communications requested by Plaintiffs. The two written agreements are also consistent with the Declarations submitted by Defendants. . . . They also appear to be consistent with the representations of Defendants' counsel.")

Case Date Jurisdiction State Cite Checked
2017-12-07 Federal FL

Chapter: 20.602
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("We also find that the common interest doctrine applies because Solvay and Abbott 'share[d] at least a substantially similar legal interest' in actual or potential litigation against a common adversary. . . . The common interest doctrine applies 'even if there is no 'final' agreement or if the parties do not ultimately unite in a common enterprise.'"; "Having signed an agreement to acquire Solvay on September 26, 2009, Abbott and Solvay shared a common interest in litigation concerning Solvay products when these emails were exchanged in October 2009. In addition, unlike the due diligence documents discussed above, these email communications were made "to obtain informed legal advice which might not have been made absent the privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA

Chapter: 20.602
Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("[T]he Intervenors cannot simply point to a generalized interest in passing constitutional legislation to justify invoking the [common interest] doctrine. It is dubious to argue that individual legislators and the Intervenors were operating under an implied common interest agreement if the individual legislators were completely unaware of being part of such an agreement. This is especially important here because the Intervenors have assumed that they had a common interest with individual legislators all along. The Intervenors have made no effort to verify -- even to this day -- whether those parties in fact concurred in its assessment of their supposed common interest, and it is clear that any communications or document exchanged prior to the establishment of a common interest agreement are not protected from disclosure.")

Case Date Jurisdiction State Cite Checked
2015-05-26 Federal VA

Chapter: 20.602
Case Name: In re Milo's Kitchen Dog Treats Consolidated Cases, Civ. A. No. 12-1011, 2015 U.S. Dist. LEXIS 63281 (W.D. Pa. May 14, 2015)
(finding that there was no common interest between the plaintiffs and potential class members, with whom the plaintiff communicated by Facebook message; "Plaintiff has failed to demonstrate these factors. Although Plaintiff and Ms. Corcoran clearly have a common interest in this litigation, Plaintiff have not submitted any evidence, or even advanced the argument, that she and Ms. Corcoran agreed to a joint defense effort or a shared litigation strategy. It therefore follows that their communications could not have been made pursuant to such an agreement. In addition, no evidence has been provided to the Court that Ms. Corcoran had formally opted-in to the prospective class at the time or formally engaged counsel to represent her. Further, it is not at all clear to the Court that, having been posted on Facebook, the communications between Plaintiff and Ms. Corcoran were not disclosed to other third parties. Under these circumstances, the common interest doctrine does not rectify Plaintiff's waiver of the attorney client privilege or serve to protect the Facebook message between Plaintiff and Ms. Corcoran from discovery.")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal PA

Chapter: 20.602
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "PCS [Defendants] also asserts the joint defense privilege for communications it had with, or shared with, Matson's [Defendants] counsel. . . . However, PCS has made no showing that Matson was participating in the joint defense agreement, or had any intention of keeping its communications with PCS's counsel confidential. PCS's counsel asserts that 'my communications with Matson were made in confidence,' and goes on to state that he, PCS's counsel, 'intended these communications to be in confidence.' Johnson Privilege Log . . . Does not assert, nor has it offered a declaration from Matson, that Matson intended the communications to be in confidence. To the contrary, the privilege log shows that Matson's counsel received communications authored by PCS's counsel and by Oahu's [Defendants] counsel regarding joint defense issues and the joint defense agreement, but that 'Matson did not execute the JDA.'")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 20.602
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
(analyzing common interest doctrine; "The 'common interest' LMI asserts exists between it and the Navy, in essence, is little more than a shared desire to see the same outcome in the present case, i.e. a judgment in LMI's favor that requires Steadfast to reimburse LMI for the cost of remediating the pollution conditions at the sites at issue in this case. This interest is insufficient to entitle LMI to protection under the common interest doctrine with respect to the documents with an underlying claim of attorney-client privilege. . . . While LMI does claim to have a written agreement between it and the Navy, entitled 'Common Interest Agreement Relative to Steadfast Insurance Policies,' it provides no evidence as to what that agreement entailed, let alone whether the communications LMI is seeking to protect were made 'in pursuit of a joint strategy in accordance with' that agreement."; "[A] common interest was found between the parties primarily on the basis that their disclosures were made to advance a joint legal strategy concerning either separate litigation involving similar claims and issues or reasonably anticipated joint litigation. Here, however, the Navy has not filed a separate suit against Steadfast concerning the remediation sites at issue, nor is it an insured party under the ELI Policy between LMI and Steadfast that is central to LMI's claims in this case, therefore precluding the possibility of a suit by the Navy against Steadfast presenting similar issues to those that are the subject of this case.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 20.602
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(analyzing the common interest doctrine; "The 12/18 Letter was created at or near the outset of the joint defense relationship. Even at that early stage, all of the elements of the Bergonzi [United States v. Bergonzi, 216 F.R.D. 487, 495-96 (N.D. Cal. 2003)] test were met. There was a common interest, and the communication was about the interest that the parties shared. Under these circumstances, there was at least an implied common interest privilege as to the first communications seeking to provide early views on matters of common concern and to negotiate a formal JDA. Accordingly, the 12/18 Letter is protected by the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 20.602
Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *6 (N.D. Cal. Jan. 21, 2014)
(finding that the common interest doctrine did not protect documents between two companies' signing of an agreement and plan to merge, and the merger itself; "j2 has failed to proffer any evidence of any written agreement with these two entities whatsoever, giving the court no evidence on which to base a finding that the communications are covered by the privilege. 'While such a writing may not always be required, [j2] also has not shown that the [communications] disclosed that which the common interest privilege was designed to protect – "a pre-existing privileged document" shared among "allied lawyers and clients – who are working together in prosecuting or defending a lawsuit or in certain other legal transaction."' In the absence of any agreement, written or otherwise, or any evidence of a common legal foe, the communications in question fall outside the scope of the common-interest privilege." (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal CA B 6/14

Chapter: 20.602
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12 mc 00131 SI, 2012 U.S. Dist. LEXIS 158348, at *5 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "The cases cited by SawStop are further distinguishable in a very important respect. In each case, every party asserting the common interest doctrine had entered into a one-on-one relationship with the recipient of the specific legal advice and that relationship was manifested in some reciprocal agreement.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.602
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *37 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "In order then for documents and communications shared amongst those who may participate in a joint defense scheme to be considered confidential, there must exist an agreement, though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.603
Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. March 5, 2018)
(holding that the common interest doctrine did not protect communications between a Creditors Committee (represented by Hunton & Williams) and the bankrupt company, who settled with a Creditors Committee and then sued the defendant; "There is a Common Interest Agreement between the Trustee and FTB, the existence of which does not create the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-05 Federal DE

Chapter: 20.603
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. No. 16-453-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
(holding that the work product doctrine did not protect communications to and from a litigation finance company and its lawyer Reed Smith, and that the litigant and its litigation funder did not share a common interest sufficient to avoid waiving privilege protection; apply the "AID" standard for work product protection; "Plaintiff argues that '[l]itigation funders provide funds 'for the sake of securing, advancing, or supplying legal representation,' and thus have a common legal interest with the plaintiffs they fund.'. . . Therefore, argues Plaintiff, because 'Hamilton Capital [was] [P]laintiff s litigation funder with a financial interest in [Plaintiff's] successful enforcement of the patents,' Plaintiff and Hamilton Capital had a common legal interest when the communications were exchanged. . . . Plaintiff also cites an unpublished Court of Chancery opinion, Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7 (Del. Ch. Feb. 24, 2015), for the proposition that 'there is a community of legal interest between a patent owner and its litigation funder.'. . . Carlyle is about work product privilege, not common interest attorney-client privilege. 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7."; "However, as explained by the Special Master, 'even accepting Plaintiff's representation' of the confidential relationship between Plaintiff's counsel and Hamilton Capital's counsel, 'it [does not] appear that there was any written agreement at [the time of the communications] to have a legally 'common interest' in whatever was provided by Plaintiff.'. . . Furthermore, the Special Master explained that the 'documents were provided before any agreement was reached between Plaintiff and Hamilton Capital, and before any litigation was filed.'. . . Thus, Plaintiff has not shown that Plaintiff and Hamilton Capital possessed identical legal interests in the patents-in suit or were otherwise 'allied in a common legal cause' at the time of the communications. . . . Because Plaintiff has not carried its burden of establishing a common legal interest, the privilege does not apply, and Plaintiff's objection falls short.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal
Comment:

key case


Chapter: 20.603
Case Name: UnitedHealthcare of Fla. v. Am. Renal Assocs. LLC, Civ. No. 16-cv-81180-Marra/Matthewman, 2017 U.S. Dist. LEXIS 201866 (S.D. Fla. Dec. 7, 2017)
(analyzing the provisions of the common interest agreement and finding the agreement effective; "Moreover, the Court has reviewed in camera the written common interest agreement between Defendants and Mr. McDonough's counsel, Skadden Arps, Slate, Meagher & Flom LLP. The common interest agreement is dated March 16, 2017, is executed by all parties and appears to be legitimate and applicable to the communications requested by Plaintiffs. The Court has also reviewed in camera the written common interest agreement between Defendants' counsel and Ms. Cordeiro's counsel, Brune Law P.C. That common interest agreement is dated February 3, 2017, is executed by all parties and also appears to be legitimate and applicable to the communications requested by Plaintiffs. The two written agreements are also consistent with the Declarations submitted by Defendants. . . . They also appear to be consistent with the representations of Defendants' counsel.")

Case Date Jurisdiction State Cite Checked
2017-12-07 Federal FL

Chapter: 20.603
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
("The existence of an express or implied joint defense agreement 'is not necessarily an all-or-nothing proposition.'")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.603
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
(holding that the indemnitor and indemintee in an asset purchase agreement did not have a common interest; "To extend the attorney-client privilege between or among them, parties must (1) share a common interest; (2) agree to exchange information for the purpose of facilitating legal representation of the parties; and (3) the information must otherwise be confidential. . . . Although prudent counsel would always put a representation agreement in writing, there is no requirement that the agreement be in writing.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NC

Chapter: 20.603
Case Name: Tatung Company, Ltd. v. Shu Tze Hsu, Case No. SA CV 13-1743-DOC (ANx), 2016 U.S. Dist. LEXIS 22012 (C.D. Cal. Feb. 19, 2016)
(finding that common interest doctrine can apply without a written agreement, but concluding that the common interest doctrine did not apply in these circumstances; "The Court agrees with Defendants that no written agreement is required and that an agreement may be implied from conduct and the situation, such as attorneys exchanging confidential communications from clients who are or potentially may be codefendants or have common interests in litigation.")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal CA

Chapter: 20.603
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
(overturning Judge Gorenstein's order, and finding: (1) that the work product doctrine protects a taxpayer's documents involving the IRS's scrutiny into a deduction; (2) a taxpayer's disclosure of privileged communications to bank Consortium did not waive privilege, because the common interest doctrine applied despite the absence of ongoing litigation; noting that the IRS did not seek documents prepared by the taxpayer's law firm Dentons or shared only with lawyers and Ernst & Young, but sought "('EY Tax Memo') that identified potential U.S. tax consequences of the refinancing and restructuring, identified and analyzed possible IRS challenges to the Schaeffler Group's tax treatment of the transactions, and discussed in detail the relevant statutory provisions, U.S. Treasury regulations, judicial decisions, and IRS rulings."; "'When the Schaeffler Group and the Consortium agreed to share legal analyses, they signed an agreement, styled the 'Attorney Client Privilege Agreement.' Of course, the title of that agreement was not binding on the district court and is not binding on us. The Agreement is relevant, however, to the issues of whether the Schaeffler Group and the Consortium maintained confidentiality with regard to third parties and were pursuing a common legal interest.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY

Chapter: 20.603
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "To meet his burden of establishing that the common interest doctrine applies, the Trustee presented the Common Interest Memorandum, a document executed by the Trustee and Tracy Meyers on behalf of SCAG on December 11, 2014, which provides that it is intended to memorialize the mutual understanding and agreements previously reached by their offices regarding the disclosure of documents and information relating to Debtor. It further provides that documents were exchanged to facilitate the Trustee and SCAG's investigation of alleged violations of the law by the Debtor and their shared agreement not to waive any applicable claim of the attorney-client privilege or work product protections and treat any materials and information disclosed by either party as confidential."; "'The SCAG in pursuing its investigation related to file no. 09089 and the Trustee in pursuing his investigation into causes of action belonging to the Trustee and the Debtor shared a unity of interest in their respective investigations and developing the facts and legal theories that ultimately became the SCAG Complaint and the Trustee Complaint and mutually relied on one another's cooperation, advice, input, and compiling and sharing of information (including any documents produced by third parties, as applicable) with the express understanding that any information, strategy, and communications shared, made, then-existing, produced, or created, whether written or oral, including confidential, privileged, documents protected by the work product doctrine, or for which any other privilege or protection could be claimed, would remain confidential in order to more effectively prosecute their claims and with the further understanding that neither the Trustee nor the SCAG could unilaterally waive any such protection or privilege.'"; "Meyers further states in her affidavit that 'the cooperative efforts of the SCAG and the Trustee began on or before October of 2010, whereby the Trustee and the SCAG had a meeting of the minds as to the SCAG and the Trustee's common interests, which was later memorialized in the Common Interest [Memorandum].'")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 20.603
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "[A] common interest agreement does not have to be reduced to writing in order for the doctrine to apply. . . . The credible and uncontradicted Affidavit of Meyers, an officer of the State of South Carolina, establishes the requisite agreement between the Trustee and SCAG, prior to the alleged waiver, to cooperate in their investigations and development of legal theories, which led to the filing of the SCAG Administrative Proceeding and the Complaint commencing this adversary proceeding, and thus supports the application of the common interest doctrine. The Court notes that the Trustee's joint efforts with SCAG are consistent with his statutory duties to collect and reduce to money the property of the estate under 11 U.S.C. § 704, including causes of action, and to investigate and report to the U.S. Attorney pursuant to 18 U.S.C. § 3057 if he believes a crime has been committed. The MK Defendants further argue that the Common Interest Memorandum makes no mention of the June 16, 2011 express waiver effected by Trustee's counsel. Even if the June 16, 2011 e-mail was construed broadly to encompass more than the Trustee's limited position on Morgan Keegan's production of documents to the SCAG in response to the SCAG Subpoena, the application of the common interest doctrine prevents the June 16, 2011 email from operating as a waiver because the Trustee cannot unilaterally waive the privilege without the consent of SCAG, and there is no evidence that SCAG consented to a waiver of any applicable privilege.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 20.603
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "A written agreement is not required for the common interest doctrine to apply, but there must be an agreement or a meeting of the minds.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 20.603
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "PCS [Defendants] also asserts the joint defense privilege for communications it had with, or shared with, Matson's [Defendants] counsel. . . . However, PCS has made no showing that Matson was participating in the joint defense agreement, or had any intention of keeping its communications with PCS's counsel confidential. PCS's counsel asserts that 'my communications with Matson were made in confidence,' and goes on to state that he, PCS's counsel, 'intended these communications to be in confidence.' Johnson Privilege Log . . . Does not assert, nor has it offered a declaration from Matson, that Matson intended the communications to be in confidence. To the contrary, the privilege log shows that Matson's counsel received communications authored by PCS's counsel and by Oahu's [Defendants] counsel regarding joint defense issues and the joint defense agreement, but that 'Matson did not execute the JDA.'")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 20.603
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *20 (W.D. Wash. Sept. 19, 2014)
("[A]n agreement to pursue a joint strategy need not be made in writing and may be implied from conduct, 'such as attorneys exchanging confidential communications from clients who are or potentially may be codefendants or have common interest in litigation.'")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 20.603
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *21 (W.D. Wash. Sept. 19, 2014)
("It is not sufficient that attorneys for different clients possess 'a shared desire to see the same outcome in a legal matter.' . . . . Rather, they must make the communication in pursuit of a joint strategy and in accordance with a written or unwritten agreement.")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 20.603
Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
(apparently finding that the absence of a written common interest agreement made the protection unavailable; "[A]n executed Joint-Defense/Community-of-Interest Agreement has not been presented to the Court and the Court assumes that one does not exist.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal NJ

Chapter: 20.603
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *16 17, *20-21 (N.D. Cal. Mar. 17, 2014)
(analyzing the common interest doctrine; "The court has reviewed these emails in camera and determined that they are protected by the joint defense privilege. At time the emails were sent, Hayes Scott was representing two neighbors against whom Plaintiff had filed petitions for restraining orders and Michael Allen was representing a third. While Plaintiff had not filed a petition against Scott Armstrong, (HSP's client and another of Plaintiff's neighbors), Hayes Scott avers that Plaintiff had made allegations against Armstrong, and Armstrong believed he would soon be targeted by Plaintiff. Thus the neighbors' attorneys had reasons to work together toward a common objective, i.e. defending against a legal campaign that Plaintiff had aimed at neighbors who testified against him in his criminal trial, or were otherwise supportive of the criminal prosecution. That there is no written agreement memorializing a joint defense agreement is of no moment, as a joint defense may be implied from the situation and the context of the emails. The emails pertain to the matter in which the parties have a joint legal interest, and the communication is designed to further that specific legal interest."; "[T]he clients of Hayes Scott, HSP, and Michael Allen have a joint interest in defending themselves against Plaintiff's various actions. This joint defense effort also includes those attorneys' decision to reveal Plaintiff's alleged misbehavior to the RCPD, which is premised on supposedly false police reports about the same underlying events that form the basis of Plaintiff's petitions for restraining orders. This is ample basis for implying a joint defense, even in the absence of a written joint defense agreement. Accordingly, Plaintiff's motion to compel the production of this document is denied.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 20.603
Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *6 (N.D. Cal. Jan. 21, 2014)
(finding that the common interest doctrine did not protect documents between two companies' signing of an agreement and plan to merge, and the merger itself; "j2 has failed to proffer any evidence of any written agreement with these two entities whatsoever, giving the court no evidence on which to base a finding that the communications are covered by the privilege. 'While such a writing may not always be required, [j2] also has not shown that the [communications] disclosed that which the common interest privilege was designed to protect – "a pre-existing privileged document" shared among "allied lawyers and clients – who are working together in prosecuting or defending a lawsuit or in certain other legal transaction."' In the absence of any agreement, written or otherwise, or any evidence of a common legal foe, the communications in question fall outside the scope of the common-interest privilege." (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal CA B 6/14

Chapter: 20.603
Case Name: The Little Hocking Water Ass'n, Inc. v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *63 (S.D. Ohio Feb. 19, 2013)
("This doctrine 'applies only when all attorneys and clients have agreed to take a joint approach in the matter at issue' and such agreement need not be in writing." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 20.603
Case Name: Falana v. Kent State Univ., Case No. 5:08 CV 720, 2012 U.S. Dist. LEXIS 173114, at *11 (N.D. Ohio Dec. 6, 2012)
(holding the co-defendant could enter into a valid common interest agreement; "The common interest privilege asserted by defendants to oppose plaintiff's discovery requests is not an independent privilege, but an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties, and assumes the existence of an underlying privilege. . . . One of the situations where the common interest exception applies is when the parties share a common defense interest and enter into a written joint defense agreement to assure that shared information remains privileged.")

Case Date Jurisdiction State Cite Checked
2012-12-06 Federal OH B 9/13

Chapter: 20.603
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 876 (E.D. Va. 2012)
("Pinnacle first argues that the common interest doctrine cannot apply because there was no written agreement and because the Army is not a party in the Georgia state action. Yet, the Fourth Circuit has made clear that neither a written agreement nor participation in litigation are requirements for invocation of the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 9/13

Chapter: 20.603
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 876 (E.D. Va. 2012)
("[T]he Fourth Circuit has made clear that neither a written agreement nor participation in litigation are requirements for invocation of the common interest doctrine. As the Fourth Circuit put it, 'The common interest doctrine requires a meeting of the minds, but it does not require that the agreement be reduced to writing or that litigation actually have commenced.'" (citation omitted); "[T]he Fourth Circuit has found the common interest doctrine applied where only one entity was a named party in the relevant civil litigation. See In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990). In any event, although the Army is not a named party in the Georgia state action, it is a 49% owner of one of the plaintiffs, and thus clearly can be considered a party in interest with respect to that litigation.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 20.603
Case Name: Hunton & Williams v. United States Dep't of Justice, 590 F.3d 272, 287 (4th Cir. 2010)
("The common interest doctrine requires a meeting of the minds, but it does not require that the agreement be reduced to writing or that litigation actually have commenced.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal

Chapter: 20.603
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *37 n.11 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "It is obviously prudent to have a joint defense memorialized in writing. Too often the vagaries of an oral agreement cloud and pollute the true intent of the parties, especially when the parties claiming the privilege must establish that there was in fact an agreement and that the specific communication was protected thereunder.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.604
Case Name: Dominion Resources Services, Inc. v. Alstom Power, Inc., Civ. No. 3:16CV00544 (JCH), 2017 U.S. Dist. LEXIS 132212 (D. Conn. Aug. 18, 2018)
("The Court's analysis of the claims at issue in this lawsuit and the Court-recognized common interest between AEGIS and Dominion leads it to a different conclusion regarding topic 8. The Court agrees with Dominion that inquiry into this topic presents a substantial danger of intruding on privileged information. Questions regarding the who, what, when, where and why of any retention arrangement between AEGIS and Dominion regarding this lawsuit would go to the very heart of the common interest that AEGIS and Dominion share, and by necessity would implicate privileged information. Thus, the Court concludes that revelation of information regarding this topic would 'amount to the prejudicial disclosure of a confidential communication.'")

Case Date Jurisdiction State Cite Checked
2018-08-18 Federal CT
Comment:

key case


Chapter: 20.604
Case Name: AP Atlantic, Inc. v. Crescent Univ. City Venture, LLC, 15 CVS 14745 (Master File), 16 CVS 14844 (Related Case), 2017 NCBC LEXIS 49 (N.C. Super. June 6, 2017)
(holding that the privilege did not protect a joint defense agreement; "Crescent has failed to meet its burden to establish that the common interest doctrine protects discovery of the JDA. Based on the Court's in camera review of the emails constituting the JDA, the Court concludes that the JDA is not a confidential communication between an attorney, his client, or a third-party 'relat[ing] to a matter about which the attorney is being professionally consulted.'"; "Rather, the JDA simply reflects Crescent's agreement with Summit, prior to any demand related to this litigation ever having been made against Summit, 'to exchange information for the purpose of facilitating legal representation of the parties.'. . . The JDA does not itself convey confidential information to facilitate the rendering of legal advice in connection with this or other specific litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-06 State NC

Chapter: 20.604
Case Name: Avis Rent A Car Sys., LLC v. City of Dayton; Case Nos. 3:12-cv-399 & -405, 2013 U.S. Dist. LEXIS 109922, at *8 (S.D. Ohio Aug. 5, 2013)
(analyzing the common interest doctrine; "The Court concludes that the Joint Agreement is, at best, minimally relevant to either 'party's claim or defense' under Federal Rule 26(b)(1)[.] Furthermore, it is protected by the extension of the attorney-client privilege that arises from Plaintiffs' similar, if not identical, legal interests under the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2013-08-05 Federal OH B 4/14

Chapter: 20.604
Case Name: Avis Rent A Car Sys., LLC v. City of Dayton; Case Nos. 3:12-cv-399 & -405, 2013 U.S. Dist. LEXIS 109922, at *5 (S.D. Ohio Aug. 5, 2013)
(analyzing the common interest doctrine; "Under the common interest doctrine, that privilege extends to protect the Joint Agreement from discovery.")

Case Date Jurisdiction State Cite Checked
2013-08-05 Federal OH B 4/14

Chapter: 20.604
Case Name: Avis Rent A Car Sys., LLC v. City of Dayton, Ohio, Case Nos. 3:12-cv-399 & -405, 2013 U.S. Dist. LEXIS 100918, at *14 (S.D. Ohio July 18, 2013)
(analyzing a common interest agreement; "[T]he Court cannot yet rule that privilege applies to the Joint Agreement, nor can it make a ruling regarding whether the Joint Agreement is discoverable, until after performing an in camera review of the document.")

Case Date Jurisdiction State Cite Checked
2013-07-18 Federal OH B 4/14

Chapter: 20.604
Case Name: Warren Distributing Co. v. INBEV USA L.L.C., Civ. No. 07-1053 (RBK), 2008 U.S. Dist. LEXIS 71320 (D.N.J. Sept. 18, 2008)
(holding that a common interest agreement deserved privilege protection; "The fact that a joint defense agreement was signed is not evidence of the conspiracy plaintiffs allege existed. If this were the case courts would routinely order the production of joint defense agreements. In fact, however, plaintiffs have not cited to a single case where a joint defense agreement was held discoverable.")

Case Date Jurisdiction State Cite Checked
2008-09-18 Federal NJ

Chapter: 20.605
Case Name: Dominion Resources Services, Inc. v. Alstom Power, Inc., Civ. No. 3:16CV00544 (JCH), 2017 U.S. Dist. LEXIS 132212 (D. Conn. Aug. 18, 2018)
("The Court's analysis of the claims at issue in this lawsuit and the Court-recognized common interest between AEGIS and Dominion leads it to a different conclusion regarding topic 8. The Court agrees with Dominion that inquiry into this topic presents a substantial danger of intruding on privileged information. Questions regarding the who, what, when, where and why of any retention arrangement between AEGIS and Dominion regarding this lawsuit would go to the very heart of the common interest that AEGIS and Dominion share, and by necessity would implicate privileged information. Thus, the Court concludes that revelation of information regarding this topic would 'amount to the prejudicial disclosure of a confidential communication.'")

Case Date Jurisdiction State Cite Checked
2018-08-18 Federal CT
Comment:

key case


Chapter: 20.605
Case Name: Generac Power Sys., Inc. v. Kohler Co., Case No. 11 CV 1120 JPS, 2012 U.S. Dist. LEXIS 160400, at *5 (E.D. Wisc. Nov. 8, 2012)
("[T]he Court notes that it has already determined the agreement to be a joint defense agreement, and it is, therefore, protected by the work-product exemption.")

Case Date Jurisdiction State Cite Checked
2012-11-08 Federal WI B 7/13

Chapter: 20.801
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "Equally interesting is that we are aware of no jurisdiction that has rejected the principle when called upon to recognize it. Many states apparently have not addressed the question in a published decision -- as in Illinois -- probably owing to the fact that discovery issues infrequently make their way to an appellate court. But as far as our research discloses, every court that has addressed it has recognized it in some form. To be sure, courts have disagreed on the scope of this common-interest exception: whether the parties must be perfectly aligned or just generally share a common litigation goal, whether it applies beyond current litigation to anticipated litigation, whether it applies beyond litigation to commercial interests generally, which communications are protected, and the like."; "But as far as our research and that of the parties discloses, none of those courts has refused to recognize the common-interest exception to the waiver rule. None of them has held that parties with a common interest to defeat an adversary in a case or potential case should not be allowed to pool information and communicate with each other without fear of waiving a privilege.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.801
Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("The degree of common legal interest required to qualify under the doctrine is the subject of some debate, ranging from 'substantially similar' to 'identical.'"; "The pertinent inquiry is whether litigation was reasonably anticipated. . . . This inquiry can be satisfied well in advance of actual litigation.")

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 20.801
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "Outside of New Jersey, however, courts vary in their analyses of the common interest rule, resulting in less certainty concerning its application. Schaffzin, supra, 15 B.U. Pub. Int. L.J. at 65. Some jurisdictions require that the interests of the parties be completely congruent in order for a common legal interest to exist. . . . Others have stated that it is necessary that every party share identical interests. . . . Additionally, some jurisdictions stress that no commonality of legal interest exists if there is no threat of actual litigation, resting the analysis on this aspect rather than on the uniformity of interests."; "Other jurisdictions disagree whether the common interest doctrine can protect client-to-client communications. . . . These numerous differences among jurisdictions reflect the lack of uniformity concerning the scope of the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.801
Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
(analyzing the common interest doctrine; "The degree of common legal interest required to qualify under the doctrine is the subject of some debate, ranging from 'substantially similar' to 'identical.'")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal NJ

Chapter: 20.802
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
(analyzing the common interest doctrine's application to communications between defendant restaurant owners and its authorized purchasing entity, both of whom entered into an agreement with a non-party sucralose yellow-packeted sweetner, which plaintiff alleged violated its trademark; concluding that the parties had a common interest in the transaction, and could therefore withhold transaction-related documents from discovery; "Defendants' privilege log shows DineEquity and CSCS had identical legal interests in the communications at issue, which concerned their negotiation of license and indemnification agreements with Domino."; "Given that CSCS is DineEquity's sole authorized purchasing entity, these privilege log descriptions reflect a goal of understanding the legal effects of DineEquity and CSCS's negotiations with Domino with respect to trademark licenses and indemnification agreements."; "Plaintiffs argue that the descriptions could imply DineEquity and CSCS did not have identical interests and that any shared interests were business ones, rather than legal. However, Plaintiffs' arguments are largely premised on the unsupported assertion that DineEquity and CSCS were in negotiations with each other, rather than with Domino."; "[U]nlike Bank of America [Bank of America, N.A. v. Terra Nova Ins. Co. Ltd., 211 F. Supp. 2d 493, 497 (S.D.N.Y. 2002)], Defendants and CSCS were not on opposite sides of a business transaction, sharing only a goal that the transaction be 'legally appropriate.' As noted above, DineEquity and CSCS were together in negotiations with Domino, and as described, sought and received legal advice about the legal ramifications of aspects of that deal. Plaintiffs contend that these descriptions show Defendants and CSCS were working to 'effectuate their business goal of completing the sweetener transition.'. . . While these descriptions suggest that Defendants' and CSCS's ultimate goal was a business transition, they also make clear that the issues addressed in the communications were specific legal issues within the transition. These legal issues do not lose their legal characteristics merely because they arise in the context of a business transaction.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 20.802
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
("The common interest doctrine does not protect the five redactions at issue because Defendant Cultural Care, Inc., the holder of the attorney-client privilege, disclosed the privileged information to the Alliance, which does not have an identical legal interest. Defendants' argument, that '[w]ith respect to this litigation, the Alliance and Defendants have an identical interest -- to prevail,' an argument the Magistrate Judge adopted, is inaccurate. . . . For Defendants to 'prevail' in this action is for them to escape liability for the underpayment of au pairs under the FLSA or state minimum wage laws. The Alliance does not, and cannot have, that interest because the Alliance cannot be held liable for underpayments to au pairs. The Alliance is differently -- situated to Plaintiffs' claims than Defendants are, for the Alliance is not an employer of au pairs and did not pay au pairs. In short, the Alliance has no interest in escaping liability, unlike Defendants. . . . Defendants thus have failed to carry their burden to show an identical legal interest with the Alliance. The common-interest doctrine does not protect the attorney-client privileged information Defendant Cultural Care, Inc. divulged to third party the Alliance."; "The Magistrate Judge's conclusion that Defendants and the Alliance have an identical legal interest in 'retaining] the current method of stipends' is contrary to law. . . . That is not an identical legal interest; it is a business or commercial interest. . . . The Magistrate Judge also erred in stating that 'the Alliance could be named . . . an active aider and abettor' or 'a potential defendant' in this action. . . . As the Court has discussed at length, the Alliance cannot be named a defendant to Plaintiffs' claims because the Alliance is not responsible for paying au pairs.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 20.802
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
(holding that the common interest doctrine required the participants to have an identical interest)

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 20.802
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. No. 16-453-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
(holding that the work product doctrine did not protect communications to and from a litigation finance company and its lawyer Reed Smith, and that the litigant and its litigation funder did not share a common interest sufficient to avoid waiving privilege protection; apply the "AID" standard for work product protection; "Plaintiff argues that '[l]itigation funders provide funds 'for the sake of securing, advancing, or supplying legal representation,' and thus have a common legal interest with the plaintiffs they fund.'. . . Therefore, argues Plaintiff, because 'Hamilton Capital [was] [P]laintiff s litigation funder with a financial interest in [Plaintiff's] successful enforcement of the patents,' Plaintiff and Hamilton Capital had a common legal interest when the communications were exchanged. . . . Plaintiff also cites an unpublished Court of Chancery opinion, Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7 (Del. Ch. Feb. 24, 2015), for the proposition that 'there is a community of legal interest between a patent owner and its litigation funder.'. . . Carlyle is about work product privilege, not common interest attorney-client privilege. 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7."; "However, as explained by the Special Master, 'even accepting Plaintiff's representation' of the confidential relationship between Plaintiff's counsel and Hamilton Capital's counsel, 'it [does not] appear that there was any written agreement at [the time of the communications] to have a legally 'common interest' in whatever was provided by Plaintiff.'. . . Furthermore, the Special Master explained that the 'documents were provided before any agreement was reached between Plaintiff and Hamilton Capital, and before any litigation was filed.'. . . Thus, Plaintiff has not shown that Plaintiff and Hamilton Capital possessed identical legal interests in the patents-in suit or were otherwise 'allied in a common legal cause' at the time of the communications. . . . Because Plaintiff has not carried its burden of establishing a common legal interest, the privilege does not apply, and Plaintiff's objection falls short.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 20.802
Case Name: Eagle Forum v. Phyllis Schlafy's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 16618 (S.D. Ill. Feb. 1, 2018)
(finding that the common interest doctrine could protect communications in the absence of anticipated litigation, but that the participants needed to have an identical legal interest; "It is well settled that communications need not be made in anticipation of litigation to fall within the common interest doctrine. [United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007)] However, for the doctrine to apply, the person with whom the privileged information is shared must have an identical — not merely similar — legal interest in the subject matter of the communication, which must be made in the course of furthering the ongoing, common enterprise."; "Defendant's conclusory argument misses the mark. First, Defendant has failed to articulate the precise legal interest that binds the parties in 'Group 2' (aside from 'defeating' the Cori Plaintiffs). Indeed, what Defendant describes appears to be a mere 'rooting interest' among these individuals and entities against the Individual Plaintiffs. While it is apparent that there are disputes concerning the Phyllis Schlafly Family of Marks and the corporate governance of Eagle Forum, the Court is not convinced that the interests of PSAE are clearly aligned with ETF, EFELDF, or PSRT, or any trustee or member of the Board of the same. If they are, Defendant has failed to meet its burden on this point. In particular, with regard to the ownership of the Family of Marks, it appears these entities have taken differing positions. Similarly, there has been no showing of a common legal interest between PSAE or members of its Board of Directors (Kathleen Sullivan, Ed Martin, John Schlafly, Andrew Schlafly, and Phyllis Schlafly at the time this lawsuit was filed) and the other individuals identified by Defendant in 'Group 2' (Bruce Schlafly, Liza Forshaw, or Ned Pfeifer).

Case Date Jurisdiction State Cite Checked
2018-02-01 Federal IL

Chapter: 20.802
Case Name: Jiang v. Porter, Case No. 4:15-CV-1008 (CEJ), 2016 U.S. Dist. LEXIS 82939 (E.D. Mo. June 27, 2016)
("The requisite 'common interest' exists where 'the parties have an identical (or nearly identical) legal interest as opposed to a merely similar interest' or a commercial interest."')

Case Date Jurisdiction State Cite Checked
2016-06-27 Federal MO

Chapter: 20.802
Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(analyzing the common interest doctrine; "Importantly, the parties' interest in the subject matter involved in the communication must be identical, not merely similar.")

Case Date Jurisdiction State Cite Checked
2015-06-18 Federal IL

Chapter: 20.802
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representations and the common interest doctrine; finding that two policewomen who claimed sexual harassment did not share a common interest, so that they could not engage in privileged communications after the same lawyer stopped representing both of them in a joint representation; analyzing the common interest doctrine; "Although it is a close question, the interests of Ms. McCullough and Ms. Marrero are not 'identical, legal interests.' While the Complaints in both cases allege generally that there was sexual harassment and discrimination at the FOP, Ms. Marrero's complaint is dominated by her allegations regarding her supervisor's harassment. Ms. McCullough's Complaint does not involve him. Thus the 'common interest' doctrine is not applicable here.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.802
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "A shared rooting interest in the 'successful outcome of a case' is not a common legal interest."; "Ms. McCullough and Ms. Marrero no doubt had a common interest in seeing the FOP punished for what they perceived to be the wrongs each of them allegedly suffered. If that were all, it would not constitute the required identity of legal interest required by the cases."; "Although it is a close question, the interests of Ms. McCullough and Ms. Marrero are not 'identical, legal interests.' While the Complaints in both cases allege generally that there was sexual harassment and discrimination at the FOP, Ms. Marrero's complaint is dominated by her allegations regarding her supervisor's harassment. Ms. McCullough's Complaint does not involve him. Thus, the 'common interest' doctrine is not applicable here.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.802
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *16 (D. Md. Aug. 16, 2013)
(holding that the common interest doctrine protected communications among family members; "As for whether 'the communicating parties shared an identical legal interest,'. . . every member of the Ngoubene family shares a common legal interest as either a target or potential target of Plaintiff's allegations. While François, Marie-Thérèse, and Collins Ngoubene are currently excused from liability, they could be re-exposed to Plaintiff's litigation should their diplomatic immunity be lost.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 20.802
Case Name: Avis Rent A Car Sys., LLC v. City of Dayton; Case Nos. 3:12-cv-399 & -405, 2013 U.S. Dist. LEXIS 109922, at *4-5 (S.D. Ohio Aug. 5, 2013)
(analyzing the common interest doctrine; "Here, the common interest doctrine applies to Plaintiffs and the privilege they share with their attorneys. The Avis and the Enterprise Plaintiffs have the same goal in this litigation: a remedy for the City's breach of their respective lease agreements, which, although separately signed agreements, are identical in all material respects that are relevant to their claims.")

Case Date Jurisdiction State Cite Checked
2013-08-05 Federal OH B 4/14

Chapter: 20.802
Case Name: Jemsek v. Jemsek Clinic, P.A. (In re Jemsek Clinic, P.A.), Ch. 11 Case No. 06-31760, Adv. No. 07-03008, 2013 Bankr. LEXIS 3120, at *36 (W.D.N.C. Aug. 2, 2013)
(analyzing the common interest doctrine; "BCBSNC [Blue Cross & Blue Shield of N.C.], and BCBSA [Blue Cross & Blue Shield Ass'n] share an identical legal interest that stems from BCBSNC's contract with BCBSA to administer the SBP [Service Benefit Plan] in North Carolina.")

Case Date Jurisdiction State Cite Checked
2013-08-02 Federal NC B 4/14

Chapter: 20.802
Case Name: Costello v. Poisella, 291 F.R.D. 224, 231 (N.D. Ill. 2013)
("The common interest doctrine is limited to those circumstances where the parties have an identical -- not merely similar -- legal interest and the communication is made to further the ongoing, common interest.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 20.802
Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 296 (N.Y. App. Div. 2013)
("The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State NY B 3/14

Chapter: 20.802
Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 470 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "There is some dispute over how similar the interests must be for the common interest doctrine to apply. In Duplan Corp. v. Deering Milliken, Inc. [397 F. Supp. 1146 (D.S.C. 1974)], for example, the court suggested the legal interests must be identical. The Restatement (Third) of the Law Governing Lawyers, by contrast, says the interests 'need not be entirely congruent.' In In re Teleglobe Communications [Teleglobe Commc'ns Corp. v. BCE, Inc., 493 F.3d 345 (3d Cir, 2007)], the court, in explaining the split of authority, noted it need not resolve that dispute. (footnotes omitted)")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 3/14

Chapter: 20.802
Case Name: Domanus v. Lewicki, No. 08 C 4922, 2012 U.S. Dist. LEXIS 177325, at *9 (N.D. Ill. Dec. 14, 2012)
(analyzing a derivative case; ultimately holding that the company and individual defendants in a derivative case did not share a common interest; "[T]he common interest doctrine is limited to those circumstances where the parties have an identical -- not merely similar -- legal interest and the communication is made to further the ongoing, common interest.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal IL B 9/13

Chapter: 20.802
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *37 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "In order then for documents and communications shared amongst those who may participate in a joint defense scheme to be considered confidential, there must exist an agreement, though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.803
Case Name: In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018)
February 13, 2109 (PRIVILEGE POINTS)

"Courts Take Expansive View of the Common Interest Doctrine"

Under the common interest doctrine, separately represented clients can avoid the normal waiver implications of disclosing privileged communications to third parties. Unfortunately, some courts do not recognize the doctrine, and most courts take a very narrow view – requiring that the common interest participants be in or anticipate litigation.

But some courts take an expansive view. In In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018), the court held that two companies considering a merger could rely on the common interest doctrine to safely share privileged communications about patent litigation involving one of the participants. Interestingly, the court did not point to the work product doctrine – which clearly would have covered the "litigation summar[ies]" the merging companies shared, and which would have survived such disclosure to a friendly third party. One day later, the court in AgroFresh Inc. v. Essentiv LLC, Civ. A. No. 16-662-MN-SRF, 2018 U.S. Dist. LEXIS 213204 (D. Del. Dec. 11, 2018), similarly held that a patent licensor and an exclusive licensee shared a common interest. The adversary argued that a patent licensee's interest is not "truly identical" to a licensor's interest, because "the licensee is free from the obligation to pay royalties on sales of the product if the patent is invalidated." Id. at *14. The court relied on earlier decisions in explaining that "licensors and exclusive licensees of patent rights are understood to share an identical legal interest in obtaining strong and enforceable patents." Id.

Expansive cases like this frequently generate hope that other courts will expand the common interest doctrine to transactional settings. But few courts have moved in that direction.

Case Date Jurisdiction State Cite Checked
2018-12-10 Federal MA

Chapter: 20.803
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "The separate parties 'need not have identical interests and may even have some adverse motives,' but must share a common interest in litigation.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA

Chapter: 20.803
Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. Bankr. March 5, 2018)
(holding that the common interest doctrine did not protect communications between a Creditors Committee (represented by Hunton & Williams) and the bankrupt company, who settled with a Creditors Committee and then sued the defendant; "The common interest privilege can apply only if the parties share a 'substantially similar legal interest.'")

Case Date Jurisdiction State Cite Checked
2018-03-05 Federal DE

Chapter: 20.803
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; "Leeper's [New employee who pleaded guilty to hacking into the former employer's computer system] characterization of the legal interests at play is more accurate. Under Gonzalez [United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (citing United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000)], it is enough that parties' legal interests be sufficiently common on one substantive claim or point, even if they diverge on another. So long as the communication in question relates to a joint-defense strategy related to that common claim, it suffices to trigger the joint-defense privilege. Once Denali learned of the impending suit, its primary legal interest became denying outright that Leeper committed the hacking at all. That interest mirrored and coextended with Leeper's, who himself denied the allegations outright. Moreover, Denali's conduct in the weeks following its notice of the suit evidences that interest, most notably, allowing Leeper to return to work.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.803
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "The first question, a matter of dispute between State Farm and plaintiffs here, is whether the parties sharing a 'common interest' must be perfectly aligned in all respects or whether if suffices that they share some common interest in defeating a litigation opponent."; "[W]e agree that it would be unreasonable to require perfect alignment of the parties' interest."; "Here, State Farm's and O'Dea's interests are sufficiently aligned to satisfy the standard. Many of the theories of liability against State Farm are vicarious in nature; the actual acts of alleged wrongdoing were by O'Dea, allegedly with State Farm's blessing or later ratification. If plaintiff's case against O'Dea failed for whatever reason, likewise its case against State Farm would fail. State Farm and O'Dea have every reason to assist one another in defeating this purported class-action lawsuit.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL
Comment:

key case


Chapter: 20.803
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "At the time of the email communications, all parties had or were preparing to assert legal claims against Wakaya. Youngevity and Wakaya were already engaged in litigation. Livewell and Anson were preparing to assert their claims against Wakaya in the Notices that were sent two days later, on December 16, 2016. Accordingly, counsel for Youngevity, Livewell and Anson shared legal advice related to their common legal claims against Wakaya. The parallels between the Notices and Youngevity's allegations in the instant litigation evidence this common legal strategy."; "[W]hile Anson's position as an officer of Wakaya meant he had some interests that were adverse to Youngevity, it does not establish that Anson was adverse to Youngevity in all respects. Wakaya presents no evidence that Anson took any action adverse to the common legal strategy agreement between Youngevity, Livewell and Anson. To the contrary, the record shows that at the time of the email correspondence at issue, Anson was actively working to sever all ties with Wakaya by drafting the Notices and seeking legal advice on separation as an employee of Wakaya. Although Anson and Youngevity may not have had 'identical interests and may even have [had] some adverse motives,' the record shows they shared a common legal interest in asserting common claims against Wakaya."; "Accordingly, the Court concludes that Youngevity did not waive work product protection by forwarding work product to counsel for Livewell and Anson because the parties shared a common legal interest.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.803
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Moreover, review of those documents themselves supports the Court's finding that they should be withheld from production since these documents are, in large part, transmittal correspondence between counsel for Wyoming and Napleton that makes clear the parties' joint effort to address the legal issues that Audi had raised with them. Very often, these documents are simply cover letters or emails that accompanied draft documents that the parties were sharing for comment, and which would subsequently be provided to Audi in substantially the same form. In other cases, the correspondence is some brief acknowledgment of communication received from Audi's counsel, and scheduling further discussions between the dealerships in order to prepare a concerted response that addresses the issues Audi was pressing. Although the Court recognizes that Audi may mine these limited pieces of correspondence for significance that might not be immediately apparent, the Court finds that the probative value of the correspondence itself is in large measure especially limited and thus this entire discovery dispute ultimately winds up being about withheld communications which often have very little apparent substance to them."; "Accordingly, following review of the parties' briefs and the documents submitted in camera, the Court agrees with Wyoming Valley's assertion that the common-interest privilege applies to each of the documents identified on Logs 1 and 3 because Wyoming Valley has effectively demonstrated that it shared with Napleton the kind of substantial parallel legal interests are necessary for the common-interest privilege to be applicable to this narrow set of documents, much of it correspondence between counsel. That the parties may have shared a commercial interest both in seeing this transaction through to closing, and in overcoming Audi's opposition to the deal, does not mean that the dealerships did not also have substantially similar legal interests vis a vis Audi, which was seeking to protect its alleged rights under its contract with Wyoming Valley."; "It is difficult to read Audi's correspondence in September 2016 as doing anything less than threatening formal legal action and making specific legal demands, which Wyoming Valley and Napleton had a shared interest in addressing. Although they may have previously been on opposite sides of an arms' length transaction, in the fall and winter of 2016, Wyoming Valley's and Napleton's interests converged more closely, and became increasingly intertwined such that Napleton has recently been permitted to intervene in this case to defend the transaction that Audi has attacked. Therefore although the parties may not have shared common legal interests prior to the fall of 2016, the Court finds that they did so after Audi's September 28, 2016 letter. That letter presented a common legal threat to the parties' common commercial interests. Confronted by this common legal threat, we believe that the parties now had a common legal interest in coordinating a response to this threatened litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.803
Case Name: Immunex Corp. v. Sandoz Inc., Civ. A. No. 16-1118 (CCC), 2017 U.S. Dist. LEXIS 87262 (D.N.J. June 7, 2017)
("Many aspects of the common-interest doctrine are subject to debate across the Country, including the degree of legal interest the parties must share. See Katharine Traylor Schaffizn, An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix It, 15 B.U. Pub. Int. L.J. 49 (2005). Must the parties have identical interests? Substantially similar? Can the parties even be adverse in some respects? Can it be commercial or must it be legal? To be blunt, non-binding case law to support any view on any subject in this area can be found. . . . In the absence of controlling authority, this Court requires that the parties share a substantially similar legal interest in the shared communication."; "Whether a given communication has (a) an underlying privilege, and (b) was made in furtherance of a shared legal interest is usually a document-by-document consideration, which is undertaken in an abbreviated fashion below. However, as a general matter, the Court is satisfied that, if a given communication is privileged, and assuming it was made in furtherance of the licensing agreement and/or prosecution, scope, and validity of the Roche Patents, the common interest doctrine would apply to protect it.")

Case Date Jurisdiction State Cite Checked
2017-06-07 Federal NJ
Comment:

key case


Chapter: 20.803
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "Certain aspects of the common interest doctrine are subject to wide-ranging interpretations across the Country. However, this Court is bound to apply New Jersey privilege law in this case, and New Jersey law favors an extremely expansive view of the doctrine. Indeed, O'Boyle [O'Boyle, 218 N.J. at 198] has made clear that disclosure may occur prior to the commencement of litigation; may involve communications between counsel for one party and a representative of another party; that the shared interest need not be strictly legal but also may be commercial; and that the parties' shared interests need not be identical -- a 'common purpose' will suffice. Id. at 199. The burden to show the privilege has not been waived, and thus, that the doctrine applies, rests with the party resisting disclosure.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ

Chapter: 20.803
Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
("The common-interest doctrine, which is not an independent privilege but is an exception to the rule that the attorney-client privilege is waived when privileged information is disclosed to a third party, applies when parties share a substantially identical interest in the subject matter of a legal communication.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA

Chapter: 20.803
Case Name: Supreme Forest Prods., Inc. v. Kennedy, No. 3:16-cv-0054 (JAM), 2017 U.S. Dist. LEXIS 4421 (D. Conn. Jan. 12, 2017)
(holding that the privilege protected communications between two former company employees who had filed separate lawsuits against the same employer, using the same lawyer; finding it unnecessary for them to do an identical interest because they were jointly represented by the same lawyer rather than creating a common interest agreement; finding that the privilege did not protect the two clients' employee without the lawyer present; "[T]he attorney-client privilege may properly extend to communications that occur between an attorney in the presence of two or more clients that the attorney jointly represents."; "Here, it is clear to me that Kennedy and Welch share a common interest based on their highly similar employment claims brought against the same employer. They are for all practical purposes jointly represented by one attorney, and the fact that their attorney filed separate lawsuits rather than joining his two clients together in a single lawsuit does not dispel the application of the co-client privilege. If the clients share a common interest, the co-client rule requires joint representation, not necessarily joint litigation."; "This 'community of interest' privilege, however, differs from the co-client privilege. . . . For the co-client privilege, it suffices for the clients to have a common interest, not necessarily interests that are identical in all respects. So long as their interests are common, co-clients who consult the same lawyer would reasonably expect that their communications with the lawyer to which they are mutually privy would be protected from disclosure to third parties by the attorney-client privilege. The legitimate expectation of privilege is unmistakably higher in the co-client context than the broader community-of-interest context involving parties who are not represented by the same counsel."; "In any event, Kennedy and Welch had nearly identical legal interests. They both sought legal representation to pursue what was essentially the same major claim -- that Supreme Forest Products had violated federal law by retaliating against them when they resisted driving overweight vehicles. There were, of course, minor factual differences between their claims, but the gravamen of their complaint --Supreme Forest's alleged insistence on driving illegally loaded vehicles, and its alleged willingness to retaliate against drivers who didn't toe the line -- was the same. Although Welch had an additional claim related to his post-termination health benefits, the fact that Welch had an additional interest in his suit does not vitiate his common interest with Kennedy. I therefore find that defendants' interests were sufficiently common for them to properly invoke the co-client attorney-client privilege."; "Plaintiffs further contend that there is no evidence that Kennedy and Welch had a joint representation agreement with their counsel prior to when they were sued by plaintiffs in January 2016. But this argument ignores the course of dealing between defendants prior to January 2016 when they had both retained counsel within days of each other in May 2014 to represent them for purposes of the claims they eventually filed against Supreme Forest Products, Inc. Even if prior to January 2016 Kennedy and Welch did not have a formal written agreement of joint representation, it is clear to me that they would have justifiably expected their co-client communications with counsel to be protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2017-01-12 Federal CT
Comment:

key case


Chapter: 20.803
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("The case law in this District differs as to whether the asserted legal interest must be 'identical' or merely 'common' to the parties."; "The Court finds that an overly stringent standard requiring a total identity of interest would unduly hamper the purpose of the common interest rule, which is to 'protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken . . . .'. . . It is commonplace that parties may engage in a 'common legal strategy' without having an exactly identical interest in the outcome of the litigation in question, and their interest in maintaining the confidentiality of attorney-client communications and attorney work product in support of their joint endeavor is not diminished solely because, in the final instance, the remedies that they derive from litigation differ. The key question is whether the parties are collaborating on a legal effort that is dependent on the disclosure of otherwise privileged information between the parties or their counsel.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY
Comment:

key case


Chapter: 20.803
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("We also find that the common interest doctrine applies because Solvay and Abbott 'share[d] at least a substantially similar legal interest' in actual or potential litigation against a common adversary. . . . The common interest doctrine applies 'even if there is no 'final' agreement or if the parties do not ultimately unite in a common enterprise.'"; "Having signed an agreement to acquire Solvay on September 26, 2009, Abbott and Solvay shared a common interest in litigation concerning Solvay products when these emails were exchanged in October 2009. In addition, unlike the due diligence documents discussed above, these email communications were made "to obtain informed legal advice which might not have been made absent the privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA

Chapter: 20.803
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("[S]everal courts have held that an insurer shares a common legal interest with the insured in the outcome of litigation, even when their potential defenses are not perfectly aligned.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 20.803
Case Name: First Mercury Ins. Co. v. Markowitz, Civ. A. No. 2:12-cv-6527 (WHW) (CLW), 2015 U.S. Dist. LEXIS 116670 (D.N.J. Sept. 1, 2015)
(analyzing the common interest doctrine; "To establish that the common interest rule applies to a disclosed communication, the asserting party must show that: (1) the disclosure is made due to actual or anticipated litigation, (2) for the purpose of furthering a common interest, and (3) the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. . . . Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information. . . . Moreover, the common interest need not be identical; a common purpose will suffice.").

Case Date Jurisdiction State Cite Checked
2015-09-01 Federal NJ
Comment:

key case


Chapter: 20.803
Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("The degree of common legal interest required to qualify under the doctrine is the subject of some debate, ranging from 'substantially similar' to 'identical.'"; "The pertinent inquiry is whether litigation was reasonably anticipated. . . . This inquiry can be satisfied well in advance of actual litigation.")

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 20.803
Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("The common-interest privilege 'allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others.'. . . The doctrine applies in civil and criminal cases as well as purely transactional contexts. . . . the Court of Appeals has noted that 'members of a community of interest must share at least a substantially similar legal interest.'"; "That their interests are not identically aligned does not eliminate the possibility that the common-interest doctrine could be appropriate.")

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 20.803
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("But the question is not whether the parties have all issues in common. The point is whether there was a common interest in 'the subject matter of a communication between an attorney and a client concerning legal advice.'. . . There was: the investigation and ultimate litigation against Fenkell.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 20.803
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
("Some case law suggests that a party seeking to invoke the common interest doctrine must have an 'identical' legal interest. . . . However, 'more recent cases have held that the parties need not have 'total identity of interest' as long as 'a limited common purpose necessitates disclosure to certain parties.'")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 20.803
Case Name: Mobile Medical International Corp. v. Advanced Mobile Hosp. Sys. Inc., Case No. 2:07-cv-231, 2015 U.S. Dist. LEXIS 23110 (D. Vt. Feb. 24, 2015)
(holding that a board member did not waive a company's privilege by giving it to another partner in his investment firm, was a "backup" on investments; "The question presented here is whether two private equity partners, only one of which was directly involved in MMIC's governance, shared a sufficient community of interests to preserve the attorney-client privilege. This case is likely unique in that Mr. Morris was specifically designated as Mr. Beinecke's 'backup' on the MMIC investment. Accordingly, Mr. Morris was different from other partners at BVP, BVP staff, and other MMIC investors generally. . . . On these limited facts, the Court finds that Mr. Morris and Mr. Beinecke were engaged in a common enterprise, and to the extent that Mr. Beinecke's interest was legal rather than commercial, so too was the interest of Mr. Morris as his backup.")

Case Date Jurisdiction State Cite Checked
2015-02-24 Federal VT

Chapter: 20.803
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "The plaintiff argues the defendants must have identical legal interests for the common interest doctrine to apply. Their interests are not identical because the two defendants might be adverse in a damages assessment should the plaintiff's prevail on the state law claim. However, courts that have held identical interests are necessary have done so when one party was a non-litigant. . . . District courts in the Sixth Circuit have found common interests even absent identical interests. . . . Following this precedent, this court finds identical interests unnecessary in this context.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY
Comment:

key case


Chapter: 20.803
Case Name: In re Bank of New York Mellon Corp. Forex Trans. Litig. v. The Bank of New York Mellon, 12-md-2335 (LAK), 11-cv-6969 (LAK), 2014 U.S. Dist. LEXIS 159069 (S.D.N.Y. Nov. 10, 2014)
(analyzing the common interest doctrine; finding that a non-identical but common commercial or financial common interest satisfies common interest requirements; "The weight of the rather limited authority on this issue suggests that the common interest doctrine is narrow that it shields from discovery confidential attorney-client communications voluntarily disclosed to a third party only if that third party shares with the disclosing party some identifiable and concrete legal interest. Under this formulation of the doctrine, a common commercial interest is insufficient to trigger its protections. So, too, is a shared goal or 'concerns about potential litigation.' In fact, a party seeking the protection of the common interest doctrine in a court that adheres to what appears to be the majority view of that doctrine must show that it developed with the relevant third party an agreement, formal or informal, 'embodying a cooperative and common enterprise towards an identical legal strategy.'"; "On the other hand, some courts have taken a more expansive view of the common interest doctrine one that protects confidential attorney-client communications voluntarily disclosed to a third party even if that third party shares only a commercial or financial interest with the disclosing party."; "This case falls somewhere along the spectrum between the poles represented by the views thus summarized. Certainly the Bank and its pension plan's investment managers had more than a simple commercial interest in the subject addressed by the Groom Memo. The Bank was concerned with ensuring that its pension plans complied with ERISA, it obtained legal advice on that issue, and it communicated that legal advice to the investment managers who invested plan assets. . . . On the other hand, the Bank and the investment managers did not face existing or imminently threatened litigation. They did not enter into a joint defense agreement, certainly not explicitly and probably not implicitly. And the Bank's threat to seek indemnity from the investment managers if they failed to comply with ERISA coupled with the Bank's disclosure of the advice it received laid down a marker that was in some degree commercial in nature it effectively told the investment managers that the Bank would hold them responsible if they did not handle the compliance issues in at least as exacting a manner as the Groom Memo had recommended."; "[W]e live in a very complex society. The Bank and its pension plans are obliged to comply with ERISA, a very complicated statute, and to do so in the context of a complicated investment world. The division of functions that characterizes every sector of our economy is reflected by the Bank's delegation of at least some investment responsibilities to the investment managers. And society in general has an important interest in ensuring that those involved in such heavily regulated and complicated activities act in the fullest possible knowledge of the legal implications of what they do.")

Case Date Jurisdiction State Cite Checked
2014-11-10 Federal NY

Chapter: 20.803
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "The common interest exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties applies to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. . . . The disclosure may occur prior to the commencement of litigation. . . . Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information. . . . Moreover, the common interest need not be identical; a common purpose will suffice."; "Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. . . . Moreover, the rule should be broad enough to encompass the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.803
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "We recognize, however, that any privilege, including the attorney-client privilege or the protection afforded to work product, restricts the disclosure of information, even highly relevant information, and may intrude on the fact-finding function of litigation. Kociolek, supra, 23 N.J. at 414-15, 129 A.2d 417. Yet, those concerns do not warrant adoption of the most conservative formulations of the common interest rule, such as requiring that the interests of the parties be completely congruent or identical . . . Or requiring a threat of actual litigation . . . Or requiring that the common interest be legal rather than purely commercial.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.803
Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *13 (S.D. Cal. Mar. 6, 2014)
(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "Several courts have opined that the doctrine requires that the interests be similar, not identical, but must involve primarily legal issues, not commercial issues or interests.")

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal CA B 8/14

Chapter: 20.803
Case Name: Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., No. 2:10-cv-1207 GEB AC, 2014 U.S. Dist. LEXIS 20694, at *26-27, *27 (E.D. Cal. Feb. 18, 2014)
(analyzing the common interest doctrine in the work product context; finding that the common interest doctrine was more narrow in the privilege than in the work product setting; finding that there not been a waiver when work product was shared between a district attorney and a private plaintiff suing the same defendant; "[B]oth the DA's Office and plaintiff are pursuing environmental-impact litigation based on a closely related set of facts. Second, they are bringing their respective suits against a common adversary. . . . And lastly, the actions concern the same property(ies)."; "[P]laintiff and the DA did not need to assert the same legal theories for the common interest doctrine to apply. . . . The court agrees with plaintiff that it never contended that it has no common interest with the DA, but rather that its claims are brought under different laws than the DA's claims.")

Case Date Jurisdiction State Cite Checked
2014-02-18 Federal CA B 7/14

Chapter: 20.803
Case Name: O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014)
September 3, 2014 (PRIVILEGE POINT)

“New Jersey Supreme Court Recognizes the Common Interest Doctrine: Part I”

Most federal courts recognize the common interest doctrine, which can avoid a waiver when separately represented clients who are in or anticipate litigation share communications protected by the attorney-client privilege. The New Jersey Supreme Court finally recognized the doctrine in O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014).

The court acknowledged that "[o]utside of New Jersey, . . . courts vary in their analyses of the common interest rule, resulting in less certainty concerning its application." Id. at 314. Among other things, the court pointed to federal and states courts' disagreement about the following issues: (1) the required level of "anticipation" of litigation; (2) the required similarity of interest among the participants; and (3) the doctrine's applicability to communications that do not involve all participants' lawyers. The court ultimately adopted a common interest doctrine that (1) applies in connection with "actual or anticipated litigation"; (2) can protect communications among participants who share a "common purpose" (because "the common interest need not be identical"); and (3) can protect communications between "counsel for one party and a representative of another party." Id. at 317.

The New Jersey Supreme Court's recognition of the common interest doctrine comes as good news. However, the court's catalogue of variations among other courts' application of the doctrine highlights its uncertainty. Next week's Privilege Point discusses two other aspects of the New Jersey Supreme Court's decision — one of which is unique to New Jersey, and one of which is not.

Case Date Jurisdiction State Cite Checked
2014-01-01 State NJ
Comment:

key case


Chapter: 20.803
Case Name: Jemsek v. Jemsek Clinic, P.A. (In re Jemsek Clinic, P.A.), Ch. 11 Case No. 06-31760, Adv. No. 07-03008, 2013 Bankr. LEXIS 3120, at *40 (W.D.N.C. Aug. 2, 2013)
(analyzing the common interest doctrine; "[S]haring an identical legal interest does not mean that the parties have to agree 100% on legal strategy. When two parties with a joint legal interest discuss their joint legal strategy, it is reasonable to assume that there will be some disagreements. Isolated disagreements over how to handle claims are not detrimental to the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2013-08-02 Federal NC B 4/14

Chapter: 20.803
Case Name: Heckler & Koch, Inc. v. German Sport Guns GMBH, Case No. 1:11-cv-1108-SEB-TAB, 2013 U.S. Dist. LEXIS 76580, at *5, *6, *8-9, *9 n.2 (S.D. Ind. May 31, 2013)
(finding the common interest doctrine inapplicable; "To show that this exception was applicable, Plaintiffs asserted that they have a 'nearly identical' legal interest with Umarex [plaintiff's licensee] based on an exclusive license agreement. Defendants responded by arguing that a common legal interest cannot be 'nearly identical.'"; "Plaintiffs' motion correctly points out that the common interest doctrine does not require that the interests be comparable in all respects. . . . But while interests need not be comparable in all respects, case law also states that the interests cannot merely be similar."; "The Court recognizes that Plaintiffs submitted an affidavit to support their position that an exclusive license agreement with Umarex created a common interest. . . . But that affidavit was the source of Defendants' challenge because it concluded that the interest was 'nearly identical.'. . . As the Court noted, '[n]o agreement or other evidence has been submitted to suggest otherwise.'. . . In other words, the Court was unable to confirm Plaintiffs' interpretation of the license agreement and accurately determine what Plaintiffs meant by 'nearly identical.' It was incumbent upon the Plaintiffs to present the Court with an adequate factual basis to support application of the common interest doctrine. Plaintiffs failed to do so." (footnote omitted); "Plaintiffs now submit a common interest agreement between Plaintiffs and Umarex to support their position. . . . This agreement was executed in October 2012 and could have been submitted to the Court in conjunction with the briefing on Defendants' motion to compel. Belatedly introducing this agreement does not warrant its consideration.")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal IN B 4/14

Chapter: 20.803
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 605 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Interests of the members of the joint defense group need not be entirely congruent. ")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 20.803
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 605 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Pursuant to this doctrine, attorneys representing clients with similar legal interests can share information without risk of being compelled to disclose such information generally.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 20.803
Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 470 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "There is some dispute over how similar the interests must be for the common interest doctrine to apply. In Duplan Corp. v. Deering Milliken, Inc. [397 F. Supp. 1146 (D.S.C. 1974)], for example, the court suggested the legal interests must be identical. The Restatement (Third) of the Law Governing Lawyers, by contrast, says the interests 'need not be entirely congruent.' In In re Teleglobe Communications [Teleglobe Commc'ns Corp. v. BCE, Inc., 493 F.3d 345 (3d Cir, 2007)], the court, in explaining the split of authority, noted it need not resolve that dispute. (footnotes omitted)")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 3/14

Chapter: 20.803
Case Name: Glassman v. Crossfit, Inc., Civ. A. No. 7717-VCG, 2012 Del. Ch. LEXIS 248, at *7 (Del. Ch. Oct. 12, 2012)
(finding that the common interest doctrine did not apply to protect communications between a wife going through a divorce and the buyer of her interest in a company; "[T]he two parties' interests must be 'substantially similar,' not adverse." (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-10-12 State DE B 12/13

Chapter: 20.804
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Moreover, review of those documents themselves supports the Court's finding that they should be withheld from production since these documents are, in large part, transmittal correspondence between counsel for Wyoming and Napleton that makes clear the parties' joint effort to address the legal issues that Audi had raised with them. Very often, these documents are simply cover letters or emails that accompanied draft documents that the parties were sharing for comment, and which would subsequently be provided to Audi in substantially the same form. In other cases, the correspondence is some brief acknowledgment of communication received from Audi's counsel, and scheduling further discussions between the dealerships in order to prepare a concerted response that addresses the issues Audi was pressing. Although the Court recognizes that Audi may mine these limited pieces of correspondence for significance that might not be immediately apparent, the Court finds that the probative value of the correspondence itself is in large measure especially limited and thus this entire discovery dispute ultimately winds up being about withheld communications which often have very little apparent substance to them."; "Accordingly, following review of the parties' briefs and the documents submitted in camera, the Court agrees with Wyoming Valley's assertion that the common-interest privilege applies to each of the documents identified on Logs 1 and 3 because Wyoming Valley has effectively demonstrated that it shared with Napleton the kind of substantial parallel legal interests are necessary for the common-interest privilege to be applicable to this narrow set of documents, much of it correspondence between counsel. That the parties may have shared a commercial interest both in seeing this transaction through to closing, and in overcoming Audi's opposition to the deal, does not mean that the dealerships did not also have substantially similar legal interests vis a vis Audi, which was seeking to protect its alleged rights under its contract with Wyoming Valley."; "It is difficult to read Audi's correspondence in September 2016 as doing anything less than threatening formal legal action and making specific legal demands, which Wyoming Valley and Napleton had a shared interest in addressing. Although they may have previously been on opposite sides of an arms' length transaction, in the fall and winter of 2016, Wyoming Valley's and Napleton's interests converged more closely, and became increasingly intertwined such that Napleton has recently been permitted to intervene in this case to defend the transaction that Audi has attacked. Therefore although the parties may not have shared common legal interests prior to the fall of 2016, the Court finds that they did so after Audi's September 28, 2016 letter. That letter presented a common legal threat to the parties' common commercial interests. Confronted by this common legal threat, we believe that the parties now had a common legal interest in coordinating a response to this threatened litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.804
Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
(holding that an inventor and a patent licensee had a common interest when negotiating the license, even during that otherwise adversarial negotiation; "The Regents [In re Regents of the Univ. of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996)] court . . . held that communications between a potential licensee and an inventor/patentee were privileged under the common-interest doctrine because 'both parties had the same interest in obtaining strong and enforceable patents.'. . . It did not matter that one party had not retained the other party's attorney: 'the issue is not who employed the attorney, but whether the attorney was acting in a professional relationship to the person asserting the privilege.' The court concluded that 'the legal interest [between the potential licensee and the inventor/patentee] was substantially identical because of the potentially and ultimately exclusive nature' of the license agreement: 'Valid and enforceable patents" on the inventions 'are in the interest of both parties.'"; "It is clear . . . that communications between parties concerning the strength and enforceability of patents as they are negotiating exclusive license agreements are protected under the common-interest doctrine."; "The fact that the parties periodically disagreed concerning the division of rights between them does not mean that they did not have a common interest in the patents in question. A review of the 34 disputed communications in this category that are listed in RO's memorandum, #278-1 at 14, demonstrates that, despite CEO Martin's periodic complaints concerning Crane's perceived over-reaching, NV and Crane, with input from attorneys and executives from both sides and the inventor, were in fact seeking and receiving confidential legal assistance from one another in prosecuting the patents that concerned Crane."; "[T]he parties had a common legal interest that is widely recognized in the law, namely, the interest that potential licensees and patent owners have in successfully prosecuting patent applications as established in Regents."; "RO cites In re JP Morgan Chase & Co. Securities Litigation, 2007 U.S. Dist. LEXIS 60095, 2007 WL 2363311, at *5 (N.D. Ill. Aug. 13, 2007) for the proposition that companies that are negotiating a merger cannot have a common interest because their interests are in conflict. . . . JP Morgan is not a patent case. Here, as long as the communications between buyer and seller concern the strength and enforceability of the patents, they are primarily for a legal purpose and are protected under the common-interest doctrine.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA
Comment:

key case


Chapter: 20.804
Case Name: Viesti Assocs., Inc. v. Pearson Educ., Inc., Civ. A. Nos. 12-CV-01431- & 11-CV-01687-PAB-DLW, 2013 U.S. Dist. LEXIS 103788, at *4, *4-5, *5 (D. Colo. July 23, 2013)
(analyzing a common interest agreement; "Prior to the execution of the assignments, the interests of the copyright owners were in conflict with the interests of VAI as they were negotiating an arms length transfer of their copyrights to VAI. Additionally, neither VAI nor the third-party copyright owners were 'party's attorney nor other representative' prior to the assignment."; "Prior to the assignment, even if VAI and the third-party copyright owners communications contained work product, the work product doctrine was waived by VAI's voluntary disclosure to third-parties."; "The interests of VAI and third-party copyright owners were not identical prior to the assignment because they were negotiating an arms-length transaction.")

Case Date Jurisdiction State Cite Checked
2013-07-23 Federal CO B 4/14

Chapter: 20.805
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; "Leeper's [New employee who pleaded guilty to hacking into the former employer's computer system] characterization of the legal interests at play is more accurate. Under Gonzalez [United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (citing United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000)], it is enough that parties' legal interests be sufficiently common on one substantive claim or point, even if they diverge on another. So long as the communication in question relates to a joint-defense strategy related to that common claim, it suffices to trigger the joint-defense privilege. Once Denali learned of the impending suit, its primary legal interest became denying outright that Leeper committed the hacking at all. That interest mirrored and coextended with Leeper's, who himself denied the allegations outright. Moreover, Denali's conduct in the weeks following its notice of the suit evidences that interest, most notably, allowing Leeper to return to work.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.805
Case Name: Homeward Residential, Inc. v. Sand Canyon Corp., 12-CV-5067 (JFK) (JLC), 12-CV-7319 (JFK) (JLC), 2017 U.S. Dist. LEXIS 171685 (S.D.N.Y. Oct. 17, 2017)
(holding that a loan servicer and a certificate holder shared a sufficiently common interest for privilege purposes; "Homeward cites a recent New York case in which a trustee sued a mortgage sponsor for breaches of warranties and representations and the court found that communications between the trustee and one of the trust's certificateholders concerned a 'common legal interest,' and were properly withheld as privileged. ACE Sec. Corp. v. DB Structured Prods., Inc., 55 Misc. 3d 544, 559-63, 40 N.Y.S.3d 723 (N.Y. Sup. Ct. 2016)."; "Sand Canyon argues that the potential for a lawsuit between LBF and Homeward destroys common interest. However, in New York, the possibility of a lawsuit between two parties does not prevent them from sharing confidential information for the purpose of a common legal interest."; "For many of the reasons already discussed related to LBF, Wells Fargo and Homeward have a sufficiently common legal interest such that communications made in furtherance of that interest are protected by attorney-client privilege. LBF originally informed Wells Fargo of the alleged breaches of representations and warranties that are at issue in Homeward I, and Wells Fargo filed many of the repurchase requests at issue here. As noted, the governing PSA requires that Homeward, the loan servicer, 'enforce [repurchase] obligations' 'for the benefit of' Wells Fargo and the certificateholders.'")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY
Comment:

key case


Chapter: 20.805
Case Name: In re Quest Software Inc. S'holders Litig., Civ. A. No. 7357-VCG, 2013 Del. Ch. LEXIS 167, at *15-16 (Del. Ch. May 20, 2013)
("I find that the redacted portions of these minutes are protected under the common-interest doctrine. The May 23, 2012 meeting was attended by Mr. Chandler from Wilson Sonsini Goodrich & Rosati (counsel to Quest's financial advisor Morgan Stanley), Mr. Morton from Potter Anderson (representing the Quest Board) and Mr. Sallaberry (a Quest director who was not part of the Special Committee). The parties all shared a legal interest in the potential legal risk from issuing the 19.9% Option or accepting the Dell deal, because the entire Board would have to approve the Option before its implementation or agree to the Dell deal before its acceptance. Thus, under the common interest doctrine --which allows 'separately represented clients sharing a common legal interest' to 'communicate directly with one another regarding that shared interest' -- the May 23, 2012 discussions did not waive attorney-client privilege." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-05-20 State DE B f/14

Chapter: 20.901
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "Outside of New Jersey, however, courts vary in their analyses of the common interest rule, resulting in less certainty concerning its application. Schaffzin, supra, 15 B.U. Pub. Int. L.J. at 65. Some jurisdictions require that the interests of the parties be completely congruent in order for a common legal interest to exist. . . . Others have stated that it is necessary that every party share identical interests. . . . Additionally, some jurisdictions stress that no commonality of legal interest exists if there is no threat of actual litigation, resting the analysis on this aspect rather than on the uniformity of interests."; "Other jurisdictions disagree whether the common interest doctrine can protect client-to-client communications. . . . These numerous differences among jurisdictions reflect the lack of uniformity concerning the scope of the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.901
Case Name: Smedley v. Lambert, No. 3:12-0003, 2013 U.S. Dist. LEXIS 45460, st *4-5 (M.D. Tenn. Mar. 29, 2013)
("It [the common-interest privilege] extends the scope of the attorney-client privilege by providing an exception to the general rule that communications made in the presence of or shared with third parties are not protected by the attorney-client privilege. The common interest privilege has frequently been referred to as the 'joint defense privilege' because the privilege was originally and is now most commonly invoked in the context of a joint criminal defense. . . . Although originally applied in criminal cases, it has also been extended to civil proceedings.")

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal TN B 3/14

Chapter: 20.902
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "The common interest doctrine 'serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY

Chapter: 20.902
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "Plaintiff argues that the common interest doctrine cannot be asserted because AAT did not have separate counsel. There is support for the position that all parties must be represented by counsel for the common interest exception to apply, distinguishing a joint-defense/co-client situation (i.e., two parties who hire the same attorney), from a common interest arrangement (i.e. two parties with separate counsel whose legal interests are aligned)."; "The requirement that each party to a common interest arrangement have an attorney also comports with the intent behind the common interest privilege, to permit attorneys to develop a joint legal strategy; the development of legal strategy requires the participation of lawyers."; "While this Court was not able to locate any Ninth Circuit precedent that explicitly requires both parties be represented by separate counsel, nor was there any precedent that extended the benefits of the common interest exception to the attorney client privilege when the disclosure at issue involved an unrepresented third-party employed by a separate entity."; "Defendants have not satisfied their burden to show that the common interest exception is available to protect the attachment at issue. Without clearing this first hurdle to invoke the common interest exception, the Court need not reach the remaining arguments.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA
Comment:

key case


Chapter: 20.902
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "Defendants, properly, do not assert work product privilege; but case law examining the common interest privilege in the work product context does not necessarily require representation on all sides.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA

Chapter: 20.902
Case Name: Regents of University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
August 15, 2018 (PRIVILEGE POINT)

"Court Rejects the Common Interest Doctrine's Applicability for Yet Another Reason"

The common interest doctrine can avoid the normal waiver implications of disclosing privileged communications to third parties. But some courts do not recognize the doctrine at all, and most courts impose various requirements on the doctrine that make it unpredictable and risky.

In Regents of University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018), the court dealt with the common interest doctrine's applicability to patent-related communications between the alleged infringer and a separate company that designed and manufactured the pertinent product. Before turning to the adversary's other arguments challenging the doctrine's applicability, the court found the doctrine inapplicable because the manufacturing company's employee was not represented by a lawyer at the time. The court acknowledged that no Ninth Circuit precedent " explicitly requires both parties be represented by separate counsel." Id. at *14. But the court nevertheless explained that "[t]he requirement that each party to a common interest arrangement have an attorney . . . comports with the intent behind the common interest privilege." Id. at *13. Thus, "[w]ithout clearing this first hurdle to invoke the common interest exception, the Court need not reach the remaining arguments." Id. at *16.

Lawyers hoping to rely on the common interest doctrine must keep a careful list of all the pertinent court's requirements. And of course defendants may not know which court will address their common interest doctrine argument until after they have entered into an agreement and shared privileged communications.

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA
Comment:

key case


Chapter: 20.902
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "The prevailing view also seems to be that the common-interest exception to waiver protects communications directly from Party A to Party B's lawyer, provided it is done in furtherance of the common-interest agreement."; "We nevertheless concur with the overwhelming weight of authority that would protect communications from Party A to Party B's lawyer."; "It also seems to fall within the letter and spirit of the common-interest exception to include communications from the party to its own attorney that take place in the presence of the coparty's lawyer."; "The more difficult question is whether the doctrine protects communications directly from one party to the other party in common interest."; "So whether client-to-client communications, without the presence of counsel, are covered by the common-interest exception to the waiver rule is not an issue we must decide. But what about conversations between clients that take place with counsel present?"; "To summarize, the common-interest exception to the waiver rule protects from disclosure to third parties those statements made to further the parties' common interest, pursuant to a common-interest agreement, (1) by the attorney for one party to the other party's attorney, (2) by one party to the other party's attorney, (3) by one party to its own attorney, if in the presence of the other party's lawyer, and (4) from one party to another, with counsel present.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL
Comment:

key case


Chapter: 20.902
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "When parties on the same side of a lawsuit wish to strategize to defeat their common litigation opponent, they may meet together and share information that would otherwise be privileged under the attorney-client or work-product doctrines. A lawyer may share privileged information from his or her client with the other party's lawyer. One party may speak to the other party's lawyer. One client may speak to the other client, in the presence of the lawyers. When these communications occur, the parties risk waiving privileges because they are disclosing privileged information to third parties -- the other client and the other client's lawyer."; "This case requires us to decide whether two codefendants to a lawsuit waived these privileges when they met and shared information about that lawsuit as part of a 'joint defense agreement' they executed."; "Federal courts and many state courts have recognized an exception to the waiver rule in this context, protecting the confidentiality of these joint communications as to third parties. Other states have codified this exception to the waiver rule into statute. Surprisingly, no published decision in Illinois has ever decided whether parties with a common interest in defeating a litigation opponent may share and pool information without waiving their attorney-client and work-product privileges as to third parties."; "After considering our supreme court's decisions on related issues and taking into account case law from other jurisdictions, we likewise recognize a common-interest exception to the waiver rule. As in virtually every other jurisdiction, we hold that coparties in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the attorney-client or work-product privilege when they do so."; "While we agree with the trial court's recognition of this common-interest exception to the waiver rule, we remand this matter to the trial court to conduct an in camera, communication-by-communication review of the challenged conversations involving the codefendants and their attorneys. We vacate the trial court's dispositive rulings -- the dismissal of one count, the grant of summary judgment on two others -- pending the outcome of the in camera review, given the possibility that additional facts may become discoverable after that review.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.902
Case Name: United States v. Krug, Dkt. No. 16-4136-cr, 2017 U.S. App. LEXIS 15643 (2nd Cir. App. Aug. 18, 2017)
(holding that the common interest doctrine did not protect communications unrelated to the request for or provision of legal advice; "Appeal from the December 10, 2016 order of the United States District Court for the Western District of New York (Skretny, J.) precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basis of the common-interest rule of attorney-client privilege. The excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. While expressing no view as to whether all such circumstances would invoke the privilege, we find nothing in the circumstances here to support the application of the privilege, and accordingly reverse the district court's order of exclusion."; "[W]e have stated that it is not 'necessary for the attorney representing the communicating party to be present when the communication is made to the other party's attorney' under a common-interest agreement. . . . Ultimately, "[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.'"; "The communications at issue in this case did not serve the interests that justify the privilege. The communications occurred outside the presence of any lawyer. Notwithstanding that the lawyers for the defendants were nearby and had recently been in communication with their clients, the excluded statements were not made for the purpose of obtaining legal advice from a lawyer, nor did the excluded statements share among defendants advice given by a lawyer, nor did the excluded statements seek to facilitate a communication with a lawyer. Here, the hallway discussion consisted of one member of the JDA (Wendel) conveying his independent, non-legal research to another member of the JDA (Krug) while noting he had sent the same research to his attorney. No legal advice was mentioned, much less shared or otherwise conveyed, among the co-defendants. The mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege. We know of no precedent applying the attorney-client privilege on such facts and we find no circumstances present here that could justify extending the attorney-client privilege to these communications.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal

Chapter: 20.902
Case Name: Obeid v. La Mack, 14 Civ. 6498 (LTS) (HBP), 2016 U.S. Dist. LEXIS 170826 (S.D.N.Y. Dec. 9, 2016)
(holding that an investor in plaintiff's real estate project was outside privilege protection, and could not be a common interest participant; in contrast, holding that disclosing work product to the investor did not waive that protection; "[T]here is no attorney-client relationship between plaintiff and Schmidt. Plaintiff describes Schmidt as the 'largest individual equity investor in the Miami Project'. . . and there is no contention that Schmidt is a lawyer, litigation consultant or agent of plaintiff's lawyers. Thus, the Disputed Documents cannot be privileged as a communication between a client and an attorney."; "The common interest rule does not apply here. First, it is debatable whether plaintiff and Schmidt share a common legal interest. Although plaintiff and Schmidt undoubtedly share an interest in recovering from the Individual Defendants for their alleged misconduct, it is not clear whether plaintiff and Schmidt had formed a coordinated legal strategy."; "More importantly, it does not seem plaintiff's communications with Schmidt were for the purpose of developing a common legal strategy. Although plaintiff claims to have sought 'Schmidt's opinion of and, in some cases, personal involvement in,' litigation strategy . . . , he sought it because Schmidt is an 'investor with an interest in seeing that the case is successful'. . . Moreover, plaintiff admits that his precise reason in generating the Disputed Documents was because the litigation materially affects Schmidt's financial interests."; "In determining whether communications were made in the course of formulating a common legal strategy, courts have examined whether attorneys were active in such communications. . . . Neither plaintiff's attorneys nor Schmidt's attorney was active in plaintiff's communications with Schmidt."; "Thus, given the absence of the direct involvement of attorneys here, it is impossible to conclude that a common legal strategy was being formulated."; "Therefore, the common interest rule is inapplicable and plaintiff has waived the attorney-client privilege by disclosing communications with his attorney to Schmidt.")

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY

Chapter: 20.902
Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("[T]hat rule in this case, it is clear from Plum's [child of decedent whose estate was at issue in the litigation] deposition testimony that no attorney was involved in her conversation with her mother, aunt, and uncle about becoming a trustee. . . . Therefore, even if that conversation implicated privileged information, that privilege was waived and Plum's motion must be denied with respect to Questions 21 and 22. It is not clear whether her attorneys or her mother's attorneys were involved in supplying her 'understanding' of the matters at issue in this litigation. But to the extent Plum has not shown attorney involvement, she has failed to carry her burden to prove that the common interest doctrine applies.")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal SC

Chapter: 20.902
Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("As discussed above, the common interest doctrine requires an attorney to be involved in a communication between clients for the doctrine to apply, otherwise 'a party could shield from disclosure any discussions it had with another person about a matter of common interest simply by discussing that matter first with its attorneys,' resulting in an unwarranted expansion of the scope of privilege. Walsh, 165 F.R.D. at 18. The same problem would seem to apply in the joint-client context. Moreover, there is caselaw supporting this position. . . . Therefore, the court finds that the joint-client doctrine does not protect communication made outside the presence of the clients' attorney.")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal DC
Comment:

key case


Chapter: 20.902
Case Name: Millenium Health, LLC v. Gerlach, 15-CV-7235 (WHP) (JLC), 2015 U.S. Dist. LEXIS 169563 (S.D.N.Y. Dec. 18, 2015)
(analyzing the common interest doctrine; "The joint defense privilege may apply as between two individuals within a joint defense effort, regardless of the presence of an attorney.")

Case Date Jurisdiction State Cite Checked
2015-12-18 Federal NY

Chapter: 20.902
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("The doctrine applies only where attorneys, not the clients, share the information.")

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA

Chapter: 20.902
Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; finding that the company and the CEO shared a common interest in coordinating a response to a Wall Street Journal Article; "The so-called common interest doctrine, however, does not require that the relevant advice be relayed through attorneys; instead, privilege will survive when persons with a common interest share the privileged information.")

Case Date Jurisdiction State Cite Checked
2015-04-30 State DE

Chapter: 20.902
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("[T]he fact that ACE's counsel was not present vitiates any claim to the attorney-client privilege under the common interest doctrine. The court finds that the common interest rule does not apply to protect the above-mentioned e-mails.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 20.902
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "In construing the doctrine narrowly, this court follows other district courts in this circuit in concluding that an attorney must be involved in the communications for the doctrine to apply.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY
Comment:

key case


Chapter: 20.902
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "The common interest exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties applies to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. . . . The disclosure may occur prior to the commencement of litigation. . . . Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information. . . . Moreover, the common interest need not be identical; a common purpose will suffice."; "Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. . . . Moreover, the rule should be broad enough to encompass the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "It would appear to follow that members of the interested 'community' are not free to share recollections and pool information on their own without losing the protections of the doctrine, and, as the above cases reflect, a number of courts have so held. They have recognized that communications between those claiming a common interest in a matter will not escape the waiver doctrine if they occurred in the absence of an attorney or were not directed by an attorney.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Discussions between two clients in which they simply share recollections about relevant events do not qualify as 'otherwise privileged communications' since they do not seek legal advice. They are, precisely what they purport to be: a sharing of recollections.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Here, there is no proof that the sharing of recollections between Ms. McCullough and Ms. Marrero were the result of instructions from Ms. Caporusso. Ms. McCullough's Declaration makes no such assertion, and tellingly there is no declaration from Ms. Caporusso or Ms. Marrero.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "[I]t has been held that merely because co-parties may reiterate statements previously confided to their attorneys does not render them protected and immune from waiver.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "[A] direct communication between two parties each having the requisite identical legal interest in the litigation, to be immune from discovery must involve one party seeking confidential information from the other on behalf of an attorney or relaying confidential information to the other on behalf of an attorney."; "By contrast, statements by parties concerning their personal views, recollections, and opinions unconnected with communications with counsel are not subject to protection under the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Even if the interests were 'identical, legal interests,' the doctrine is not applicable here. First, there is only one lawyer, not multiple lawyers. Second, many of the emails do not involve the transmission of 'otherwise privileged' communications either from one of them to Ms. Caporusso or from Ms. Caporusso to either or both of them. That is, they do not seek legal advice from Ms. Caporusso; they are merely reflecting on past events. Merely copying Ms. Caporusso on their emails or showing her as an additional addressee does not make their communications 'otherwise privileged.'")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representations and the common interest doctrine; finding that two policewomen who claimed sexual harassment did not share a common interest, so that they could not engage in privileged communications after the same lawyer stopped representing both of them in a joint representation; analyzing the common interest doctrine; "It would appear to follow that members of the interests 'community' are not free to share recollections and pool information on their own without losing the protections of the doctrine, and, as the above cases reflect, a number of courts have so held. They have recognized that communications between those claiming a common interest in a matter will not escape the waiver doctrine if they occurred in the absence of an attorney or were not directed by an attorney. . . . Here, there is no proof that the sharing of recollections between Ms. McCullough and Ms. Marrero were the result of instructions from Ms. Caporusso. Ms. McCullough's Declaration makes no such assertion, and tellingly there is no declaration from Ms. Caporusso or Ms. Marrero.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL
Comment:

key case


Chapter: 20.902
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representations and the common interest doctrine; finding that two policewomen who claimed sexual harassment did not share a common interest, so that they could not engage in privileged communications after the same lawyer stopped representing both of them in a joint representation; analyzing the common interest doctrine; "[I]t has been held that merely because co-parties may reiterate statements previously confided to their attorneys does not render them protected and immune from waiver.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 20.902
Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
(apparently finding that the absence of a written common interest agreement made the protection unavailable; finding that only lawyers could engage in protected communications; "These communications are not shared between two attorneys as required by Teleglobe thus ending the inquiry as to whether such an exception applies.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal NJ

Chapter: 20.902
Case Name: In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2014-01-22 Federal TX
Comment:

key case


Chapter: 20.902
Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal CA
Comment:

key case


Chapter: 20.902
Case Name: O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014)
September 3, 2014 (PRIVILEGE POINT)

“New Jersey Supreme Court Recognizes the Common Interest Doctrine: Part I”

Most federal courts recognize the common interest doctrine, which can avoid a waiver when separately represented clients who are in or anticipate litigation share communications protected by the attorney-client privilege. The New Jersey Supreme Court finally recognized the doctrine in O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014).

The court acknowledged that "[o]utside of New Jersey, . . . courts vary in their analyses of the common interest rule, resulting in less certainty concerning its application." Id. at 314. Among other things, the court pointed to federal and states courts' disagreement about the following issues: (1) the required level of "anticipation" of litigation; (2) the required similarity of interest among the participants; and (3) the doctrine's applicability to communications that do not involve all participants' lawyers. The court ultimately adopted a common interest doctrine that (1) applies in connection with "actual or anticipated litigation"; (2) can protect communications among participants who share a "common purpose" (because "the common interest need not be identical"); and (3) can protect communications between "counsel for one party and a representative of another party." Id. at 317.

The New Jersey Supreme Court's recognition of the common interest doctrine comes as good news. However, the court's catalogue of variations among other courts' application of the doctrine highlights its uncertainty. Next week's Privilege Point discusses two other aspects of the New Jersey Supreme Court's decision — one of which is unique to New Jersey, and one of which is not.

Case Date Jurisdiction State Cite Checked
2014-01-01 State NJ
Comment:

key case


Chapter: 20.902
Case Name: Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013)
March 5, 2014 (PRIVILEGE POINT)

"More Courts Reject Common Interest Doctrine's Applicability"

The common interest doctrine occasionally allows separately represented clients to share privileged documents without waiving their fragile attorney-client privilege protection. However, lawyers cannot automatically assure the doctrine's applicability just by entering into a common interest agreement with another participant. Courts reject the doctrine's applicability in over half of the cases.

In Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML, 2013 U.S. Dist. LEXIS 181690 (S.D. Ind. Dec. 31, 2013), the court found that the common interest doctrine did not protect direct communications among the clients without at least one of the client's lawyers' participation in the communication. Three weeks later, in Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 7294, at *5 (N.D. Cal. Jan. 21, 2014), the court found that two companies which had entered into a merger agreement could not rely on the common interest doctrine to resist discovery of privileged documents they had later shared – finding the doctrine inapplicable because the companies faced "no impending threat of litigation" at that time. One day later, another court found that the common interest doctrine could not apply "until litigation became a palpable reality." In re Application of Tinsel Grp., S.A., Misc. A. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *10 (S.D. Tex. Jan. 22, 2014).

These and many other similar cases did not address the common interest doctrine's applicability in the abstract. All of these participants and their lawyers thought they could avoid a waiver by entering into a common interest agreement, and later learned that the doctrine did not apply – after they had already waived their privilege by sharing protected documents.

Case Date Jurisdiction State Cite Checked
2013-12-31 Federal IN
Comment:

key case


Chapter: 20.902
Case Name: Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML; 2013 U.S. Dist. LEXIS 181690, at *5, *5 6, *8, *11, *11-12, *13-14, *17-19 (S.D. Ind. Dec. 31, 2013)
(analyzing the common interest doctrine; explaining that plaintiff Ducker formerly worked at Best Western (BWI), and sued Best Western's board chairman (Amin) for defamation after disclosure of an internal management report call the PACE report (which contained allegedly defamatory statements about Ducker, who at that time owned a company supplying services to Best Western); noting that Amin suggested that Ducker obtain a copy of the report from Andre Worthy, a current Best Western employee; further noting that Worthy hired his own lawyer in connection to Best Western's investigation into the PACE report; "On June 8, 2012, Mr. Worthy retained counsel to advise him with respect to BWI's investigation surrounding the dissemination of the PACE report, based on his concerns that his employment might be in jeopardy and that he might be unfairly targeted for having uncovered fraud in the PACE report."; explaining that "[i]n early July 2012, Ms. Ducker's and Mr. Worthy's respective legal counsel entered into a 'Shared Work Product Agreement' because their clients were being investigated by BWI regarding the PACE report and its alleged improper disclosure, particularly to Ms. Ducker as an outsider. This Agreement has not been provided to the court, but the court accepts that Ms. Ducker's and Mr. Worthy's respective counsel entered into an agreement documenting the belief that Ms. Ducker and Mr. Worthy shared a common interest in proving Mr. Amin's true role in connection with the sharing and dissemination of the PACE report and to defend against allegations of their own wrongdoing."; explaining Ducker's company later sued Best Western, although the loss did not concern the PACE report, and Best Western sought discovery of communications between Ducker and Worthy in that lawsuit; noting that "Ms. Ducker, her company, and BWI eventually settled their disputes, including any claims stemming from Ms. Ducker's role in obtaining and sharing the PACE report. Mr. Worthy and BWI also, at some point, resolved any potential litigation over Mr. Worthy's role."; "Ms. Ducker contends that because she and Mr. Worthy shared a 'common interest,' all communications since June 8, 2012 (the date Mr. Worthy retained counsel and his lawyer and Ms. Ducker's lawyer apparently first communicated) are protected from disclosure under a common interest privilege. She maintains that the common interest privilege protects not only communications between her counsel and Mr. Worthy's counsel, but also communications between her and Mr. Worthy. She seeks a protective order forbidding Mr. Amin from discovering the contents of all of these communications, whether in a deposition setting or through the production of documents."; finding that Ducker and Worthy shared a common interest as of a certain time; "As to the requirement that the communicating parties share a common interest, the court is persuaded that Ms. Ducker and Mr. Worthy did share a common interest as of June 8, 2012. Their common interest lay in discrediting -- in the context of potential legal action against them by BWI -- Mr. Amin's version of the circumstances under which Mr. Amin obtained the PACE report and learned from Mr. Worthy or Ms. Ducker information about the alleged false or fraudulent contents of the PACE report."; concluding that the common interest essentially evaporated when either Ducker or Worthy no longer faced possible liability; "Their common interest ended though, at least as early as (a) Ms. Ducker's settlement agreement with BWI, which terminated the possibility of potential legal action against her or (b) Mr. Worthy's agreement with BWI, which ended the possibility of any adverse action against him based on the PACE report. From that point forward -- though the court does not know when that point occurred -- one of them no longer faced potential liability or other adverse consequences from BWI, and their common interest dissipated. No longer did they have a reason to engage in new communications for the purposes of protecting common legal interests and obtaining legal advice in pursuit of their common interest."; rejecting Amin's argument that the common interest doctrine did not protect earlier communications taking place when Ducker and Worthy shared a common interest; agreeing with Amin that a lawyer had to be involved in protected common interest communications; "This court agrees with Mr. Amin and finds that protecting from disclosure communications between Ms. Ducker and Mr. Worthy is not necessary to further or achieve the interests the attorney-client privilege is designed to foster. Allowing Ms. Ducker and Mr. Worthy to communicate in secret, including about critical facts at issue in this case, is too broad a constraint on the 'search for truth' when each was represented by counsel who could conduct all communications truly necessary in furtherance of the matters in which they shared a joint legal interest."; "Whatever the need for clients who share the same counsel to be able privately to discuss between themselves their counsel's legal advice and mental impressions, there is no similar need when persons are represented by different legal counsel to whom each ultimately looks for his or her own separate legal advice. In the setting where persons do not share the same counsel, the participation in the communication of at least one of the person's legal counsel appropriately limits the common interest privilege to those situations that serve the goals of the attorney-client privilege with the least impingement of the 'right to every person's evidence.'. . . When a lawyer is involved in the communication, the judicial system gains confidence that the communication concerned a subject actually within the common interest of the clients and occurred because a legal advisor believed the communication was reasonably necessary to further the provision of legal advice connected to the joint interest.")

Case Date Jurisdiction State Cite Checked
2013-12-31 Federal IN B 5/14

Chapter: 20.902
Case Name: In re Outsidewall Tire Litig., Case No. 1:09cv1217, 2010 U.S. Dist. LEXIS 67578, at *8 & n.4 (E.D. Va. July 6, 2010)
("[T]he Second and Third Circuits have stated that the common interest rule only applies to communications between an attorney for one party and the common interest party, and the Fourth Circuit has implied that an attorney must be on either end of the communication in holding that the common interest rule 'applies not only to communications subject to the attorney client privilege, but also to communications protected by the work product doctrine.' [In re Grand Jury Subpoenas 89-3 & 89-4, 902 F.2d 244, 249 (4th Cir. 1990).] As the communication here in issue was not made to or from an attorney, it is not privileged, and thus the common interest rate does not apply." Id.; "[United State v.] Schwimmer, 892 F.2d {237,] 243 (2d Cir. 1989) ('[The common interest rule] serves to protect the confidentiality of communications passing from one party to the attorney for another party. . . .') (emphasis added).")

Case Date Jurisdiction State Cite Checked
2010-07-06 Federal VA B 3/16
Comment:

key case


Chapter: 20.902
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *40 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "It is clear that the parties conferring amongst themselves, outside the confines of the group, and not for the purpose of collecting information in order to obtain legal advice, does not preserve the privilege because in that event they are not seeking legal advice or sharing information to receive legal advice.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.902
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *39 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "The Court is persuaded, in light of Schwimmer [United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989)], that if a joint defense agreement exists there is an implicit understanding that one attorney is permitted not only to confer with another attorney but with the other attorney's party.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.902
Case Name: Hicks v. Commonwealth, 17 Va. App. 535, 537, 439 S.E.2d 414, 415-16 (1994)
("[A]ttorney may not divulge a professional confidence made to him by his client. . . . This privilege extends to communications among co-defendants and their attorneys when engaged in consultation about their defense. . . . This rule applies even to a defendant present at such a conference without his attorney."; finding that the common interest doctrine protected communications between the criminal defendant and a lawyer for an accomplice who was a potential co-defendant)

Case Date Jurisdiction State Cite Checked
1994-01-01 State VA

Chapter: 20.902
Case Name: In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990)
("Whether an action is ongoing or contemplated, whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.")

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 20.1002
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; "Although no case directly addressed facts such as those here, based on the substance of the Dec. 9 interview, it is clear the interview was intended to further the parties' common legal interests and joint defense. Though Denali [New employer] may try to portray the inquiry as mere information-gathering like those in Weissman [United States v. Weissman, 195 F.3d 96 (2d Cir. 1999)] and In re Grand Jury Subpoena [In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005)], Sprague's questions demonstrate that the information gleaned from the interview was clearly geared toward evaluating the viability of Columbia's claims and fashioning legal strategies as to both parties."; "Because Leeper [New employee who pleaded guilty to hacking into the former employer's computer system] and Denali shared a common legal interest, evidenced most clearly in the JLCA, and because the post-JLCA interview was made in furtherance of that interest, the joint-defense privilege therefore applies.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.1002
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; ". . . given the dearth of precedent for applying fraudulent inducement in this context, coupled with the JLCA's specific references to the parties' mutual interests and express invocation of the joint-defense privilege, there exists strong evidence of collaboration between the parties on a common legal strategy. Therefore, from at least the signing of the JLCA, if not from when Denali allowed Leeper [New employee who pleaded guilty to hacking into the former employer's computer system] to return to work, Leeper and Denali's interests were sufficiently common to satisfy the first prong of the joint-defense privilege test.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.1002
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "When parties on the same side of a lawsuit wish to strategize to defeat their common litigation opponent, they may meet together and share information that would otherwise be privileged under the attorney-client or work-product doctrines. A lawyer may share privileged information from his or her client with the other party's lawyer. One party may speak to the other party's lawyer. One client may speak to the other client, in the presence of the lawyers. When these communications occur, the parties risk waiving privileges because they are disclosing privileged information to third parties -- the other client and the other client's lawyer."; "This case requires us to decide whether two codefendants to a lawsuit waived these privileges when they met and shared information about that lawsuit as part of a 'joint defense agreement' they executed."; "Federal courts and many state courts have recognized an exception to the waiver rule in this context, protecting the confidentiality of these joint communications as to third parties. Other states have codified this exception to the waiver rule into statute. Surprisingly, no published decision in Illinois has ever decided whether parties with a common interest in defeating a litigation opponent may share and pool information without waiving their attorney-client and work-product privileges as to third parties."; "After considering our supreme court's decisions on related issues and taking into account case law from other jurisdictions, we likewise recognize a common-interest exception to the waiver rule. As in virtually every other jurisdiction, we hold that coparties in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the attorney-client or work-product privilege when they do so."; "While we agree with the trial court's recognition of this common-interest exception to the waiver rule, we remand this matter to the trial court to conduct an in camera, communication-by-communication review of the challenged conversations involving the codefendants and their attorneys. We vacate the trial court's dispositive rulings -- the dismissal of one count, the grant of summary judgment on two others -- pending the outcome of the in camera review, given the possibility that additional facts may become discoverable after that review.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.1002
Case Name: Violetta v. Steven Bros. Sports Mgmt., LLC, Case No. 16-1193-JTM-GEB, 2017 U.S. Dist. LEXIS 135861 (D. Kansas Aug. 24, 2017)
(finding that the common interest doctrine applied only if the participants were working on a common legal strategy, not if one participant merely provided facts to other participants; "The relevant question with which the Court reviews the communications is this: were Defendants and their third-party insurers communicating to formulate a common legal strategy, which would entitle the third-party communications to privilege? Upon review of the documents, it appears Ms. Waldon, on behalf of the insurance company, was simply providing information to Defendants regarding the identity of the administrator and plan documents, such as benefits summaries and plan booklets -- not working with her to craft a common legal strategy.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal KS
Comment:

key case


Chapter: 20.1002
Case Name: Immunex Corp. v. Sandoz Inc., Civ. A. No. 16-1118 (CCC), 2017 U.S. Dist. LEXIS 87262 (D.N.J. June 7, 2017)
("Many aspects of the common-interest doctrine are subject to debate across the Country, including the degree of legal interest the parties must share. See Katharine Traylor Schaffizn, An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix It, 15 B.U. Pub. Int. L.J. 49 (2005). Must the parties have identical interests? Substantially similar? Can the parties even be adverse in some respects? Can it be commercial or must it be legal? To be blunt, non-binding case law to support any view on any subject in this area can be found. . . . In the absence of controlling authority, this Court requires that the parties share a substantially similar legal interest in the shared communication."; "Whether a given communication has (a) an underlying privilege, and (b) was made in furtherance of a shared legal interest is usually a document-by-document consideration, which is undertaken in an abbreviated fashion below. However, as a general matter, the Court is satisfied that, if a given communication is privileged, and assuming it was made in furtherance of the licensing agreement and/or prosecution, scope, and validity of the Roche Patents, the common interest doctrine would apply to protect it.")

Case Date Jurisdiction State Cite Checked
2017-06-07 Federal NJ
Comment:

key case


Chapter: 20.1002
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, but did not protect communications about allocation of a settlement payment between them, or their communications about how to keep generics out of the market; "Endo bore the cost of the Watson litigation and Teikoku's obligation to split costs for the proposed settlement was voluntary and a matter of, as its counsel said, 'good business.' That was certainly not the case in Arkema [Arkema Inc. v. Asarco, Inc., No. C05-5087 RBL, 2006 U.S. Dist. LEXIS 44106, 2006 WL 1789044 (W.D. Wash. June 27, 2006)] or Roper [Roper v. Old Republic Ins. Co., No. 09-C-154, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *1 (E.D. Wis. Feb. 1, 2010)], where the parties acknowledge joint fault and agreed to arbitrations specifically to allocate their various liabilities. Also, as recognized by both decisions, the arbitration proceedings and ultimate decisions were initiated after the underlying claims arose. The arbitrations, therefore, were 'internal' to the defense and not relevant to the underlying litigation. Roper, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *2; Arkema, 2006 U.S. Dist. LEXIS 44106, 2006 WL 2254478, at *2. This case is different, where the reasons that Endo and Teikoku entered into the Watson settlement are central to the merits of this case."; "As I noted in my prior ruling, the statements at issue must be in furtherance of the strategy with respect to the joint litigation in order to be covered by the common interest privilege. . . . As shown by the evidence before me, the comments at issue in the February 2, 2012, email regarding the cost split between Endo and Teikoku cannot have been in furtherance of the parties' joint strategy with Watson where: (i) Endo bore the costs of the Watson litigation; (ii) Teikoku decided to pay for some of the costs of the Watson settlement as a business matter; (iii) Endo made a substantial settlement offer prior to the February 2nd email; (iv) additional offers were made before the May 9, 2012, agreement in principle between Endo and Teikoku; and (v) significant aspects of the settlement between Endo and Teikoku were being negotiated well after the May 29, 2012, settlement with Watson. The factual predicate of this case is much more similar to cases finding that although parties might have a common interest, for example in the validity of patents being negotiated for sale, negotiations of those own parties' "'rights and re protected, as the parties' interests would have been adverse rather than common.'"; "I agree with Endo that there is substantial ground for difference of opinion on whether the common interest privilege -- that I have already found protects against disclosure of joint strategy discussions between Endo and Teikoku about the potential settlement with Watson -- extends to separate discussions between those parties concerning how the costs of settlement would be split. However, that narrow question is not a 'controlling question of law' on the merits of this case, nor is it apparent that immediate determination of that issue would materially advance the ultimate termination of the litigation. The request for certification for interlocutory appeal is DENIED. However, in order to allow Endo to seek mandamus relief from the Ninth Circuit, defendants need not produce the information at issue for thirty days (30) from the date of this Order, absent further order from the Ninth Circuit.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 20.1002
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 159601 (N.D. Cal. Nov. 25, 2015)
(finding the common interest doctrine applicable to protect privilege for communications between two plaintiffs in a patent infringement case against the defendant; "There is a basis for asserting the common interest privilege in this case; the unresolved issue is its reach. On the one hand, Teikoku agreed in 2007, and repeated in 2015, that it did not have control of the litigation. On the other, Teikoku was clearly involved in aspects of discovery and, as the Shimoda email made clear, conversations concerning settlement."; "Endo explained at the hearing that it was not applying the doctrine to block release of communications regarding 'commercial' issues, but was where those communications involved 'litigation.' Teikoku stated that it was not applying the doctrine to block release of communications containing 'facts' but was to communications discussing 'strategy.' These lines seem appropriate in general. How they apply to any specific communication, or whether they should be disregarded for some reason, are questions left for later determination.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal CA

Chapter: 20.1002
Case Name: In re Milo's Kitchen Dog Treats Consolidated Cases, Civ. A. No. 12-1011, 2015 U.S. Dist. LEXIS 63281 (W.D. Pa. May 14, 2015)
(finding that there was no common interest between the plaintiffs and potential class members, with whom the plaintiff communicated by Facebook message; "The common interest privilege protects from disclosure communications made by parties with a common interest to each other in furtherance of a joint defense to litigation. . . . To invoke the joint defense agreement or common interest privilege the party asserting the privilege must demonstrate that: (1) the parties have agreed to a joint defense effort; (2) the parties have a common-interest in the litigation or a jointly shared litigation strategy; (3) the communications were made pursuant to such agreement; and (4) the continued confidentiality of the communications, i.e., the communications were not disclosed to other third parties such that the privileges were waived.")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal PA

Chapter: 20.1002
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(analyzing the common interest doctrine; "The 12/18 Letter was created at or near the outset of the joint defense relationship. Even at that early stage, all of the elements of the Bergonzi [United States v. Bergonzi, 216 F.R.D. 487, 495-96 (N.D. Cal. 2003)] test were met. There was a common interest, and the communication was about the interest that the parties shared. Under these circumstances, there was at least an implied common interest privilege as to the first communications seeking to provide early views on matters of common concern and to negotiate a formal JDA. Accordingly, the 12/18 Letter is protected by the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 20.1002
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(analyzing the common interest doctrine; "[T]he 12/18 Letter is a communication made by Chase to the Vendors in the course of a matter of common interest i.e., the underlying litigation and it was intended to initiate collaboration on this matter.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 20.1002
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(analyzing the common interest doctrine; "Keeping Gonzalez [United States v. Gonzalez, 669 F.3d 974, 977-78 (9th Cir. 2012)] in mind, the Court declines to adopt Plaintiffs' rigid approach, i.e., if there is a JDA, then all communications including those that occurred before the exact moment of contract formation are protected, but if there no JDA, nothing is protected.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 20.1002
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *16 17, *20-21 (N.D. Cal. Mar. 17, 2014)
(analyzing the common interest doctrine; "The court has reviewed these emails in camera and determined that they are protected by the joint defense privilege. At time the emails were sent, Hayes Scott was representing two neighbors against whom Plaintiff had filed petitions for restraining orders and Michael Allen was representing a third. While Plaintiff had not filed a petition against Scott Armstrong, (HSP's client and another of Plaintiff's neighbors), Hayes Scott avers that Plaintiff had made allegations against Armstrong, and Armstrong believed he would soon be targeted by Plaintiff. Thus the neighbors' attorneys had reasons to work together toward a common objective, i.e. defending against a legal campaign that Plaintiff had aimed at neighbors who testified against him in his criminal trial, or were otherwise supportive of the criminal prosecution. That there is no written agreement memorializing a joint defense agreement is of no moment, as a joint defense may be implied from the situation and the context of the emails. The emails pertain to the matter in which the parties have a joint legal interest, and the communication is designed to further that specific legal interest."; "[T]he clients of Hayes Scott, HSP, and Michael Allen have a joint interest in defending themselves against Plaintiff's various actions. This joint defense effort also includes those attorneys' decision to reveal Plaintiff's alleged misbehavior to the RCPD, which is premised on supposedly false police reports about the same underlying events that form the basis of Plaintiff's petitions for restraining orders. This is ample basis for implying a joint defense, even in the absence of a written joint defense agreement. Accordingly, Plaintiff's motion to compel the production of this document is denied.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 20.1002
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *8 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "[A] party cannot simply rely on a blanket claim of privilege to shield communications from discovery -- it must instead assert the common interest doctrine on a document-by-document basis.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 6/14

Chapter: 20.1002
Case Name: Ducker v. Amin, Case No. 1:12-cv-01596-SEB-DML; 2013 U.S. Dist. LEXIS 181690, at *5, *5 6, *8, *11, *11-12, *13-14, *17-19 (S.D. Ind. Dec. 31, 2013)
(analyzing the common interest doctrine; explaining that plaintiff Ducker formerly worked at Best Western (BWI), and sued Best Western's board chairman (Amin) for defamation after disclosure of an internal management report call the PACE report (which contained allegedly defamatory statements about Ducker, who at that time owned a company supplying services to Best Western); noting that Amin suggested that Ducker obtain a copy of the report from Andre Worthy, a current Best Western employee; further noting that Worthy hired his own lawyer in connection to Best Western's investigation into the PACE report; "On June 8, 2012, Mr. Worthy retained counsel to advise him with respect to BWI's investigation surrounding the dissemination of the PACE report, based on his concerns that his employment might be in jeopardy and that he might be unfairly targeted for having uncovered fraud in the PACE report."; explaining that "[i]n early July 2012, Ms. Ducker's and Mr. Worthy's respective legal counsel entered into a 'Shared Work Product Agreement' because their clients were being investigated by BWI regarding the PACE report and its alleged improper disclosure, particularly to Ms. Ducker as an outsider. This Agreement has not been provided to the court, but the court accepts that Ms. Ducker's and Mr. Worthy's respective counsel entered into an agreement documenting the belief that Ms. Ducker and Mr. Worthy shared a common interest in proving Mr. Amin's true role in connection with the sharing and dissemination of the PACE report and to defend against allegations of their own wrongdoing."; explaining Ducker's company later sued Best Western, although the loss did not concern the PACE report, and Best Western sought discovery of communications between Ducker and Worthy in that lawsuit; noting that "Ms. Ducker, her company, and BWI eventually settled their disputes, including any claims stemming from Ms. Ducker's role in obtaining and sharing the PACE report. Mr. Worthy and BWI also, at some point, resolved any potential litigation over Mr. Worthy's role."; "Ms. Ducker contends that because she and Mr. Worthy shared a 'common interest,' all communications since June 8, 2012 (the date Mr. Worthy retained counsel and his lawyer and Ms. Ducker's lawyer apparently first communicated) are protected from disclosure under a common interest privilege. She maintains that the common interest privilege protects not only communications between her counsel and Mr. Worthy's counsel, but also communications between her and Mr. Worthy. She seeks a protective order forbidding Mr. Amin from discovering the contents of all of these communications, whether in a deposition setting or through the production of documents."; finding that Ducker and Worthy shared a common interest as of a certain time; "As to the requirement that the communicating parties share a common interest, the court is persuaded that Ms. Ducker and Mr. Worthy did share a common interest as of June 8, 2012. Their common interest lay in discrediting -- in the context of potential legal action against them by BWI -- Mr. Amin's version of the circumstances under which Mr. Amin obtained the PACE report and learned from Mr. Worthy or Ms. Ducker information about the alleged false or fraudulent contents of the PACE report."; concluding that the common interest essentially evaporated when either Ducker or Worthy no longer faced possible liability; "Their common interest ended though, at least as early as (a) Ms. Ducker's settlement agreement with BWI, which terminated the possibility of potential legal action against her or (b) Mr. Worthy's agreement with BWI, which ended the possibility of any adverse action against him based on the PACE report. From that point forward -- though the court does not know when that point occurred -- one of them no longer faced potential liability or other adverse consequences from BWI, and their common interest dissipated. No longer did they have a reason to engage in new communications for the purposes of protecting common legal interests and obtaining legal advice in pursuit of their common interest."; rejecting Amin's argument that the common interest doctrine did not protect earlier communications taking place when Ducker and Worthy shared a common interest; agreeing with Amin that a lawyer had to be involved in protected common interest communications; "This court agrees with Mr. Amin and finds that protecting from disclosure communications between Ms. Ducker and Mr. Worthy is not necessary to further or achieve the interests the attorney-client privilege is designed to foster. Allowing Ms. Ducker and Mr. Worthy to communicate in secret, including about critical facts at issue in this case, is too broad a constraint on the 'search for truth' when each was represented by counsel who could conduct all communications truly necessary in furtherance of the matters in which they shared a joint legal interest."; "Whatever the need for clients who share the same counsel to be able privately to discuss between themselves their counsel's legal advice and mental impressions, there is no similar need when persons are represented by different legal counsel to whom each ultimately looks for his or her own separate legal advice. In the setting where persons do not share the same counsel, the participation in the communication of at least one of the person's legal counsel appropriately limits the common interest privilege to those situations that serve the goals of the attorney-client privilege with the least impingement of the 'right to every person's evidence.'. . . When a lawyer is involved in the communication, the judicial system gains confidence that the communication concerned a subject actually within the common interest of the clients and occurred because a legal advisor believed the communication was reasonably necessary to further the provision of legal advice connected to the joint interest.")

Case Date Jurisdiction State Cite Checked
2013-12-31 Federal IN B 5/14

Chapter: 20.1002
Case Name: Harpel v. Nicholson, Civ. A. No. 12-10280-RWZ, 2013 U.S. Dist. LEXIS 141684, at *8 n.5 (D. Mass. Oct. 1, 2013)
(analyzing the common interest doctrine; finding that partnership shared a financial rather than a legal interest; "'Eastwood/ISG [non-parties] and Harpel also claim that they have a common legal interest in defending against the defendants' counterclaim against Harpel, which includes some allegations of unsavory conduct by ISG. To the extent such allegations created a common legal interest for Eastwood/ISG and Harpel, that interest does not retroactively make privileged the communications currently at issue, which occurred well before the filing of the counterclaim.'")

Case Date Jurisdiction State Cite Checked
2013-10-01 Federal MA B 5/14

Chapter: 20.1002
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *10 (E.D. Wis. July 10, 2013)
("According to the government (whose attorneys interviewed them), Peak and Perry were interviewed as cooperating witnesses on October 27, 2005, and mid-February 2006, respectively. . . . Perry had given Peak's and IOS's [company where the criminal defendants worked] attorneys information implicating the company and certain individual defendants in October 2005. . . . According to the government, Flynn agreed to cooperate on October 6, 2005. . . . Any joint defense certainly would have ended as of those dates.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 20.1002
Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
("Newco and Huawei appear to have had a common interest in obtaining CFIUS approval and seeing the merger to its completion. The two companies, however, had adverse interests both in negotiating the Side Letter and in determining, if necessary, responsibility for the Merger Agreement's termination. Because of their potentially conflicted relationship, the Court will review the challenged communicaitons in camera to determine Newco and Huawei's position vis-à-vis one another at the time each challenged communication was made. If the parties were in common interest with respect to the matters addressed, the communication will remain privileged.")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 20.1002
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *38-39 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "To the extent that the communications were made in confidence amongst the agreement's allies, they ought to be deemed confidential pursuant to the attorney-client privilege. . . . But, and it is worth repeating, only those communications made in the course of an ongoing common litigation enterprise with the intent to further the enterprise are protected.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.1003
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; ". . . given the dearth of precedent for applying fraudulent inducement in this context, coupled with the JLCA's specific references to the parties' mutual interests and express invocation of the joint-defense privilege, there exists strong evidence of collaboration between the parties on a common legal strategy. Therefore, from at least the signing of the JLCA, if not from when Denali allowed Leeper [New employee who pleaded guilty to hacking into the former employer's computer system] to return to work, Leeper and Denali's interests were sufficiently common to satisfy the first prong of the joint-defense privilege test.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.1003
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "While the disclosures were made during the due diligence period after the parties had signed an agreement in reality that timing does not establish a common interest. The disclosures were not contingent on the signed agreement; they were contingent on Acacia [potential buyer] finding satisfactory information during the investigation process, otherwise '(i) [Acacia] shall have no payment obligations or liability to [the seller]; and (ii) this Agreement shall automatically terminate upon completion of the Investigation period.'. . . Therefore, a common legal interest could only exist after the disclosures were made because that is when the parties' agreement took effect in reality.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY

Chapter: 20.1003
Case Name: Citizens for Ceres v. Superior Court, 159 Cal. Rptr. 3d 789, 792, 811 (Cal. Ct. App. 2013)
(holding that the city and private developer share a common interest; "We conclude, however, that the common interest doctrine, which is designed to preserve privileges from waiver by disclosure under some circumstances, does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to approval of the project. This is because, when environmental review is in progress, the interests of the lead agency and a project applicant are fundamentally divergent."; "After approval, by contrast, the agency and applicant have a united interest in defending the project as approved, and privileges are not waived by disclosures between them from that time onward."; "The crucial point in time for our purposes here is project approval, not the commencement of litigation. That point is crucial for the reasons we have stated. The time of commencement of litigation has no significance."; "[W]e conclude that the city and developer have waived the attorney-client privilege and the protection of the attorney-client work product doctrine for all communications they disclosed to each other before the city approved the project."; "As we have already indicated, the situation is different after project approval. Then the agency's and applicant's interests are aligned, assuming the approval has not left any dispute remaining between them. Both are legitimately committed to the same thing at that point --defending the project as approved. Under those circumstances, there is nothing about the agency-applicant relationship that would stand in the way of applying the common interest doctrine, assuming its elements are satisfied with respect to the particular communications for which its protection is claimed.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State CA B 4/14

Chapter: 20.1003
Case Name: Hunton & Williams v. United States Dep't of Justice, 590 F.3d 272, 279, 280, 281, 282, 282-83 (4th Cir. 2010)
(holding that the government could have a common interest with the maker of the BlackBerry Smart Phone, but finding that the district court had extended the common interest doctrine to an improperly early date; remanding for further analysis; analyzing the issue under FOIA and rejecting Hunton & Williams' argument that the FOIA Exemption 5 did not apply; "It would eviscerate the meaning of Exemption 5 if we were to read it to exclude communications between federal agencies and their litigation partners where those communications advance an interest that is both common and, in the government's considered view, critical to the public's interest."; explaining that "[t]he common interest doctrine, it bears adding, is not a privilege in its own right. In re Grand Jury Subpoenas, 902 F.2d at 249."; quoting the common interest agreement between the government and the maker of the Blackberry Smart Phones; "The written agreement explains the parties' shared interest in limiting the scope of any injunction in the Blackberry litigation and clearly manifests an agreement to work together toward that end. The agreement stated that the United States government is the single largest user of Blackberry technology, and that '[t]he continued ability to employ those Blackberry systems and devices is considered of sufficient importance to the U.S. as to make necessary the pursuit of this subject through a common interest agreement.' The agreement defined the scope of the parties' common interest clearly, providing, for example, a means to terminate the agreement if the parties came to believe that their interests had diverged. DOJ's decision to intervene in the litigation in February 2006 provides further evidence that it had committed to taking RIM's side."; "In short, the Statement makes it abundantly clear that, in partnering with RIM, DOJ was asserting a genuine public interest in seeking to ensure that 'the federal government's right to continue its use of Blackberry devices is not rendered a nullity.'"; ultimately finding a common interest applicable; "Exemption 5 properly applies to communications made pursuant to that agreement. It does not matter that RIM was motivated by the commercial benefit that would accrue to it if it succeeded in opposing the BlackBerry injunction while the government was motivated by concern for the public interest. What matters is that there was a unity of interest in preserving a non-disruptive pattern of governmental BlackBerry use, and RIM and DOJ could rely on one another's advice, secure in the knowledge that privileged communications would remain just that.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal

Chapter: 20.1003
Case Name: Hunton & Williams v. United States Dep't of Justice, 590 F.3d 272, 284-85, 285, 285, 286, 288 (4th Cir. 2010)
(holding that the government could have a common interest with the maker of the BlackBerry Smart Phone, but finding that the district court had extended the common interest doctrine to an improperly early date; remanding for further analysis; analyzing the issue under FOIA and rejecting Hunton & Williams' argument that the FOIA Exemption 5 did not apply; finding the district court's analysis improper; "This analysis was flawed in two respects. First, although a common interest agreement can be inferred where two parties are clearly collaborating in advance of litigation, mere 'indicia' of joint strategy as of a particular point in time are insufficient to demonstrate that a common interest agreement has been formed. Second, it is not clear that the particular 'indicia' identified by the district court pointed to an actual common interest agreement, as opposed to a mere confidentiality agreement. Hunton contends that the parties exchanged declarations, proposed pleadings, and views as part of the process of persuading DOJ to become involved in the BlackBerry litigation. That contention is entirely plausible, particularly to the extent that the communications were initiated by RIM or flowed primarily from RIM or DOJ. The district court gave no indication that there was anything in the documents themselves that showed them to be part of a joint litigation effort, rather than an attempt by RIM to push its arguments on the government."; "Documents exchanged before a common interest agreement is established are not protected from disclosure. In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005). Thus, a proper assessment of the applicability of the common interest doctrine in this case requires a determination of the point in time when DOJ decided that it was in the public interest for RIM to prevail in its litigation with NTP and agreed to partner with RIM in doing so. The danger in this area is once again that mere lobbying efforts, as opposed to joint litigation strategy, will be removed from FOIA's reach."; "While agreement need not assume a particular form, an agreement there must be. If RIM was simply approaching DOJ over the prospect that there might one day to a joint litigation effort, such contacts and discussions seem too preliminary to remove from disclosure under Exemption 5."; "[T]he parties failed to create a written common interest agreement until November 2005. . . . As DOJ itself notes, Fargo 'routinely' creates common interest agreements and reviews those created by his staff. Yet neither party made any kind of 'common interest' notation on their written communications until October 2005. In addition, while Fargo told his supervisor that he was entering a common interest agreement in November 2005, he told his supervisor only that he and Fenster were exchanging materials 'on a confidential basis' prior to that time."; "In short, there are a number of items in the record suggesting that DOJ may not have decided to partner with RIM in the BlackBerry litigation much more November 2005. The fact that DOJ later concluded it shared RIM's interest does not protect communications between the two before that decision was made. An agreement to hear what RIM had to say and to keep what it heard confidential must not be confused with a conclusion that the public interest taking RIM's side."; "For the foregoing reasons, we affirm the district court's conclusion that privileged communications between DOJ and RIM subsequent to their November 2005 common interest are protected from disclosure by FOIA Exemption 5. We vacate its conclusion that a common interest relationship existed between RIM and DOJ from March 2005 to November 2005. On remand, the district court should determine the point in time when DOJ decided that the public's interest converged with RIM's interest in opposing broad injunctive relief, that it wanted RIM to prevail in its litigation, and that it would assist RIM in doing so.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal

Chapter: 20.1003
Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 341 (4th Cir. 2005)
(assessing the right of individual executives to stop their former employer from waiving the privilege that applied to interviews of the executives by the company's in-house and outside lawyers; after rejecting the executives' argument that they were joint clients of the lawyers, the court assessed one of the executive's claim that he had a "common interest agreement" with the company; "For the privilege to apply, the proponent must establish that the parties had 'some common interest about a legal matter.' Sheet Metal Workers Int'l Assoc. v. Sweeney, 29 F.3d 120, 124 (4th Cir. 1994). An employee's cooperation in an internal investigation alone is not sufficient to establish a common interest; rather 'some form of joint strategy is necessary'"(citation omitted); noting that uncontradicted affidavits submitted by the company's in-house lawyer indicated that "at the time of the interviews, AOL had not entered into an agreement with Wakeford regarding their joint defense. There is no evidence showing that AOL and Wakeford were pursuing a common legal strategy before December 2001. During the March-June 2001 interviews, AOL was in the early stages of its internal investigation; there is no evidence that the investigating attorneys' interviews with Wakeford were for the purpose of formulating a joint defense."; concluding that "[b]ecause there is no evidence that Wakeford and AOL shared a common interest before December 2001, we find no error in the district court's conclusion that Wakeford had no joint defense privilege before that time"), cert. denied, 126 S. Ct. 1114 (2006)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal

Chapter: 20.1102
Case Name: In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018)
February 13, 2019 (PRIVILEGE POINTS)

"Courts Take Expansive View of the Common Interest Doctrine"

Under the common interest doctrine, separately represented clients can avoid the normal waiver implications of disclosing privileged communications to third parties. Unfortunately, some courts do not recognize the doctrine, and most courts take a very narrow view – requiring that the common interest participants be in or anticipate litigation.

But some courts take an expansive view. In In re Intuniv Antitrust Litigation, Civ. A. Nos. 16-cv-12653-ADB (Direct) & 16-cv-12396-ADB (Indirect), 2018 U.S. Dist. LEXIS 207545 (D. Mass. Dec. 10, 2018), the court held that two companies considering a merger could rely on the common interest doctrine to safely share privileged communications about patent litigation involving one of the participants. Interestingly, the court did not point to the work product doctrine – which clearly would have covered the "litigation summar[ies]" the merging companies shared, and which would have survived such disclosure to a friendly third party. One day later, the court in AgroFresh Inc. v. Essentiv LLC, Civ. A. No. 16-662-MN-SRF, 2018 U.S. Dist. LEXIS 213204 (D. Del. Dec. 11, 2018), similarly held that a patent licensor and an exclusive licensee shared a common interest. The adversary argued that a patent licensee's interest is not "truly identical" to a licensor's interest, because "the licensee is free from the obligation to pay royalties on sales of the product if the patent is invalidated." Id. at *14. The court relied on earlier decisions in explaining that "licensors and exclusive licensees of patent rights are understood to share an identical legal interest in obtaining strong and enforceable patents." Id.

Expansive cases like this frequently generate hope that other courts will expand the common interest doctrine to transactional settings. But few courts have moved in that direction.

Case Date Jurisdiction State Cite Checked
2018-12-10 Federal MA
Comment:

key case


Chapter: 20.1102
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
(analyzing the common interest doctrine's application to communications between defendant restaurant owners and its authorized purchasing entity, both of whom entered into an agreement with a non-party sucralose yellow-packeted sweetner, which plaintiff alleged violated its trademark; concluding that the parties had a common interest in the transaction, and could therefore withhold transaction-related documents from discovery; "Defendants' privilege log shows DineEquity and CSCS had identical legal interests in the communications at issue, which concerned their negotiation of license and indemnification agreements with Domino."; "Given that CSCS is DineEquity's sole authorized purchasing entity, these privilege log descriptions reflect a goal of understanding the legal effects of DineEquity and CSCS's negotiations with Domino with respect to trademark licenses and indemnification agreements."; "Plaintiffs argue that the descriptions could imply DineEquity and CSCS did not have identical interests and that any shared interests were business ones, rather than legal. However, Plaintiffs' arguments are largely premised on the unsupported assertion that DineEquity and CSCS were in negotiations with each other, rather than with Domino."; "[U]nlike Bank of America [Bank of America, N.A. v. Terra Nova Ins. Co. Ltd., 211 F. Supp. 2d 493, 497 (S.D.N.Y. 2002)], Defendants and CSCS were not on opposite sides of a business transaction, sharing only a goal that the transaction be 'legally appropriate.' As noted above, DineEquity and CSCS were together in negotiations with Domino, and as described, sought and received legal advice about the legal ramifications of aspects of that deal. Plaintiffs contend that these descriptions show Defendants and CSCS were working to 'effectuate their business goal of completing the sweetener transition.'. . . While these descriptions suggest that Defendants' and CSCS's ultimate goal was a business transition, they also make clear that the issues addressed in the communications were specific legal issues within the transition. These legal issues do not lose their legal characteristics merely because they arise in the context of a business transaction.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 20.1102
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "This portion of the email is protected by the common interest privilege because Deutsche Bank and RCS share a common interest as trustee and servicer.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 20.1102
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; "Although no case directly addressed facts such as those here, based on the substance of the Dec. 9 interview, it is clear the interview was intended to further the parties' common legal interests and joint defense. Though Denali [New employer] may try to portray the inquiry as mere information-gathering like those in Weissman [United States v. Weissman, 195 F.3d 96 (2d Cir. 1999)] and In re Grand Jury Subpoena [In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 341 (4th Cir. 2005)], Sprague's questions demonstrate that the information gleaned from the interview was clearly geared toward evaluating the viability of Columbia's claims and fashioning legal strategies as to both parties."; "Because Leeper [New employee who pleaded guilty to hacking into the former employer's computer system] and Denali shared a common legal interest, evidenced most clearly in the JLCA, and because the post-JLCA interview was made in furtherance of that interest, the joint-defense privilege therefore applies.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.1102
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; ". . . given the dearth of precedent for applying fraudulent inducement in this context, coupled with the JLCA's specific references to the parties' mutual interests and express invocation of the joint-defense privilege, there exists strong evidence of collaboration between the parties on a common legal strategy. Therefore, from at least the signing of the JLCA, if not from when Denali allowed Leeper [New employee who pleaded guilty to hacking into the former employer's computer system] to return to work, Leeper and Denali's interests were sufficiently common to satisfy the first prong of the joint-defense privilege test.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.1102
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
(analyzing the common interest and waiver implications of a common interest arrangement between a company and a new employee who was later found criminally liable for hacking into his old employer's computer system; finding that the individual and the new employer had entered into a valid interest agreement, which meant that the new employer could not unilaterally disclose communications between it and the new employee despite his later criminal guilty plea; "Leeper's [New employee who pleaded guilty to hacking into the former employer's computer system] characterization of the legal interests at play is more accurate. Under Gonzalez [United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (citing United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000)], it is enough that parties' legal interests be sufficiently common on one substantive claim or point, even if they diverge on another. So long as the communication in question relates to a joint-defense strategy related to that common claim, it suffices to trigger the joint-defense privilege. Once Denali learned of the impending suit, its primary legal interest became denying outright that Leeper committed the hacking at all. That interest mirrored and coextended with Leeper's, who himself denied the allegations outright. Moreover, Denali's conduct in the weeks following its notice of the suit evidences that interest, most notably, allowing Leeper to return to work.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 20.1102
Case Name: UnitedHealthcare of Fla. v. Am. Renal Assocs. LLC, Civ. No. 16-cv-81180-Marra/Matthewman, 2017 U.S. Dist. LEXIS 201866 (S.D. Fla. Dec. 7, 2017)
(analyzing the provisions of the common interest agreement and finding the agreement effective; "Mr. Bushofsky [Ropes and Gray lawyer] also represents that the agreement has been in place 'since counsel for the American Kidney Fund and counsel for ARA began communicating regarding this matter after the American Kidney Fund learned of United's lawsuit in July [*11] 2016.'. . . The Court has no reason to doubt the veracity of the correspondence, or of counsel's representations, and Plaintiffs have not provided any evidence whatsoever to contradict Mr. Bushofsky's assertions. All of the communications at issue would be protected under the attorney-client privilege as the common interest exception applies.")

Case Date Jurisdiction State Cite Checked
2017-12-07 Federal FL

Chapter: 20.1102
Case Name: UnitedHealthcare of Fla. v. Am. Renal Assocs. LLC, Civ. No. 16-cv-81180-Marra/Matthewman, 2017 U.S. Dist. LEXIS 201866 (S.D. Fla. Dec. 7, 2017)
(analyzing the provisions of the common interest agreement and finding the agreement effective; "Moreover, the Court has reviewed in camera the written common interest agreement between Defendants and Mr. McDonough's counsel, Skadden Arps, Slate, Meagher & Flom LLP. The common interest agreement is dated March 16, 2017, is executed by all parties and appears to be legitimate and applicable to the communications requested by Plaintiffs. The Court has also reviewed in camera the written common interest agreement between Defendants' counsel and Ms. Cordeiro's counsel, Brune Law P.C. That common interest agreement is dated February 3, 2017, is executed by all parties and also appears to be legitimate and applicable to the communications requested by Plaintiffs. The two written agreements are also consistent with the Declarations submitted by Defendants. . . . They also appear to be consistent with the representations of Defendants' counsel.")

Case Date Jurisdiction State Cite Checked
2017-12-07 Federal FL

Chapter: 20.1102
Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)
(affirming and explaining the contours of the common interest doctrine under Illinois law; "When parties on the same side of a lawsuit wish to strategize to defeat their common litigation opponent, they may meet together and share information that would otherwise be privileged under the attorney-client or work-product doctrines. A lawyer may share privileged information from his or her client with the other party's lawyer. One party may speak to the other party's lawyer. One client may speak to the other client, in the presence of the lawyers. When these communications occur, the parties risk waiving privileges because they are disclosing privileged information to third parties -- the other client and the other client's lawyer."; "This case requires us to decide whether two codefendants to a lawsuit waived these privileges when they met and shared information about that lawsuit as part of a 'joint defense agreement' they executed."; "Federal courts and many state courts have recognized an exception to the waiver rule in this context, protecting the confidentiality of these joint communications as to third parties. Other states have codified this exception to the waiver rule into statute. Surprisingly, no published decision in Illinois has ever decided whether parties with a common interest in defeating a litigation opponent may share and pool information without waiving their attorney-client and work-product privileges as to third parties."; "After considering our supreme court's decisions on related issues and taking into account case law from other jurisdictions, we likewise recognize a common-interest exception to the waiver rule. As in virtually every other jurisdiction, we hold that coparties in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the attorney-client or work-product privilege when they do so."; "While we agree with the trial court's recognition of this common-interest exception to the waiver rule, we remand this matter to the trial court to conduct an in camera, communication-by-communication review of the challenged conversations involving the codefendants and their attorneys. We vacate the trial court's dispositive rulings -- the dismissal of one count, the grant of summary judgment on two others -- pending the outcome of the in camera review, given the possibility that additional facts may become discoverable after that review.")

Case Date Jurisdiction State Cite Checked
2017-12-07 State IL

Chapter: 20.1102
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; concluding that the company did not waive work product protection by sharing its work product with independent auditors; "ML's argument here is different from the argument it made for the materials provided to the SEC; it contends that even the actual physical production of work product to a company's auditors does not waive work-product protection because an independent or outside auditor typically shares a common interest with the corporation for purpose of the work product and waiver doctrines."; agreeing with Morgan Lewis; "In their motion, Defendants say that there is a 'split' on the legal consequences arising from disclosures to a corporation's accountants or auditors but then concede that 'the majority' of courts hold that auditing and accounting firms typically do share a common interest."; "The Undersigned is not persuaded by this effort to treat Deloitte differently from those cases that hold that an outside auditor has a common interest with the corporation for work-product waiver issues.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 20.1102
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. 248PA16, 2017 N.C. LEXIS 895 (N.C. Sup. Ct. Nov. 3, 2017)
(finding that defendant's agreement to indemnify another company for any liability created a joint representation (which the court called a "tripartite" representation; citing with approval Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 602-03, 617 S.E. 2d 40, 46 (2005), aff'd per curiam 360 N.C. 356, 625 S.E. 2d 779 (2006); "In all significant ways, the question of the formation of an attorney-client relationship here is indistinguishable from that resolved by our decision in Raymond. Blast contractually agreed to indemnify and defend defendants against any losses incurred relating to their real property lease. After this litigation commenced, defendants notified Blast of the litigation, and Blast engaged counsel to defend the case under the indemnification agreement. Like the common interest found in the insurance context, Blast's interest in defendants' legal well-being as indemnitees creates the common interest in this litigation: The indemnification provision subjects Blast to any damages that result from an adverse judgment against defendants. Accordingly, a tripartite attorney-client relationship exists between defendants, Blast, and their defense counsel.")

Case Date Jurisdiction State Cite Checked
2017-11-03 State NC

Chapter: 20.1102
Case Name: Homeward Residential, Inc. v. Sand Canyon Corp., 12-CV-5067 (JFK) (JLC), 12-CV-7319 (JFK) (JLC), 2017 U.S. Dist. LEXIS 171685 (S.D.N.Y. Oct. 17, 2017)
(holding that a loan servicer and a certificate holder shared a sufficiently common interest for privilege purposes; "Homeward cites a recent New York case in which a trustee sued a mortgage sponsor for breaches of warranties and representations and the court found that communications between the trustee and one of the trust's certificateholders concerned a 'common legal interest,' and were properly withheld as privileged. ACE Sec. Corp. v. DB Structured Prods., Inc., 55 Misc. 3d 544, 559-63, 40 N.Y.S.3d 723 (N.Y. Sup. Ct. 2016)."; "Sand Canyon argues that the potential for a lawsuit between LBF and Homeward destroys common interest. However, in New York, the possibility of a lawsuit between two parties does not prevent them from sharing confidential information for the purpose of a common legal interest."; "For many of the reasons already discussed related to LBF, Wells Fargo and Homeward have a sufficiently common legal interest such that communications made in furtherance of that interest are protected by attorney-client privilege. LBF originally informed Wells Fargo of the alleged breaches of representations and warranties that are at issue in Homeward I, and Wells Fargo filed many of the repurchase requests at issue here. As noted, the governing PSA requires that Homeward, the loan servicer, 'enforce [repurchase] obligations' 'for the benefit of' Wells Fargo and the certificateholders.'")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY
Comment:

key case


Chapter: 20.1102
Case Name: Estate of Chance Aaron Nash v. City of Grand Haven, No. 336907, 2017 Mich. App. LEXIS 1545 (Mich. App. Oct. 10, 2017)
(holding that the City (which was not a party in the litigation) could assert a common interest agreement with a defendant employee; "In this case, even though the city was not named as a defendant in the underlying tort litigation, a primary issue in that litigation has been determining the ownership of Duncan Park and the nature of the city's relationship to Duncan Park."; "[T]he record supports the conclusion that the city shared with all of the defendants in the underlying tort action a common legal interest in matters related to the operation, use, maintenance, and protection of Duncan Park for the benefit of the people of Grand Haven and that the city and the tort defendants were involved in a joint effort to prevent or limit liability from attaching to the parties involved in the operation of Duncan Park.")

Case Date Jurisdiction State Cite Checked
2017-10-10 Federal MI
Comment:

key case


Chapter: 20.1102
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "At the time of the email communications, all parties had or were preparing to assert legal claims against Wakaya. Youngevity and Wakaya were already engaged in litigation. Livewell and Anson were preparing to assert their claims against Wakaya in the Notices that were sent two days later, on December 16, 2016. Accordingly, counsel for Youngevity, Livewell and Anson shared legal advice related to their common legal claims against Wakaya. The parallels between the Notices and Youngevity's allegations in the instant litigation evidence this common legal strategy."; "[W]hile Anson's position as an officer of Wakaya meant he had some interests that were adverse to Youngevity, it does not establish that Anson was adverse to Youngevity in all respects. Wakaya presents no evidence that Anson took any action adverse to the common legal strategy agreement between Youngevity, Livewell and Anson. To the contrary, the record shows that at the time of the email correspondence at issue, Anson was actively working to sever all ties with Wakaya by drafting the Notices and seeking legal advice on separation as an employee of Wakaya. Although Anson and Youngevity may not have had 'identical interests and may even have [had] some adverse motives,' the record shows they shared a common legal interest in asserting common claims against Wakaya."; "Accordingly, the Court concludes that Youngevity did not waive work product protection by forwarding work product to counsel for Livewell and Anson because the parties shared a common legal interest.")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 20.1102
Case Name: United States v. Krug, Dkt. No. 16-4136-cr, 2017 U.S. App. LEXIS 15643 (2nd Cir. App. Aug. 18, 2017)
(holding that the common interest doctrine did not protect communications unrelated to the request for or provision of legal advice; "Appeal from the December 10, 2016 order of the United States District Court for the Western District of New York (Skretny, J.) precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basis of the common-interest rule of attorney-client privilege. The excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. While expressing no view as to whether all such circumstances would invoke the privilege, we find nothing in the circumstances here to support the application of the privilege, and accordingly reverse the district court's order of exclusion."; "[W]e have stated that it is not 'necessary for the attorney representing the communicating party to be present when the communication is made to the other party's attorney' under a common-interest agreement. . . . Ultimately, "[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.'"; "The communications at issue in this case did not serve the interests that justify the privilege. The communications occurred outside the presence of any lawyer. Notwithstanding that the lawyers for the defendants were nearby and had recently been in communication with their clients, the excluded statements were not made for the purpose of obtaining legal advice from a lawyer, nor did the excluded statements share among defendants advice given by a lawyer, nor did the excluded statements seek to facilitate a communication with a lawyer. Here, the hallway discussion consisted of one member of the JDA (Wendel) conveying his independent, non-legal research to another member of the JDA (Krug) while noting he had sent the same research to his attorney. No legal advice was mentioned, much less shared or otherwise conveyed, among the co-defendants. The mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege. We know of no precedent applying the attorney-client privilege on such facts and we find no circumstances present here that could justify extending the attorney-client privilege to these communications.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal

Chapter: 20.1102
Case Name: Cejka v. Vectrus Sys. Corp., Civ. A. No. 15-cv-02418-MEH, 2017 U.S. Dist. LEXIS 117419 (D. Colo. July 27, 2017)
("Although Fluor was not actually named as a party to this case, the Court finds that these facts, known at the time Vectrus and Fluor were made aware of potential litigation by the Plaintiffs in June and July 2015, suffice to demonstrate a common interest between Vectrus and Fluor concerning their involvement in and preparation for such litigation. In other words, the Court concludes that the nature of the interests between Vectrus and Fluor starting in July 2015 regarding potential litigation by the Plaintiffs were identical, and the legal hold notice and communications between Vectrus' and Fluor's attorneys arising therefrom 'advance[d] the representation of the part[ies] and the attorney[s'] preparation of the case.'")

Case Date Jurisdiction State Cite Checked
2017-07-27 Federal CO

Chapter: 20.1102
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
(holding that Uber and its acquired company Ottomotto shared a common interest after they entered into the purchase agreement; "Sharing confidential information with a party one is required to indemnify is not inconsistent with the adversary system, provided the information concerns the subject matter of the indemnification right as it does here."; "Waymo insists that following the signing of the Put Call Agreement Otto, Levandowski and Ron still did not share a 'common interest.' Such an argument, however, is relevant to waiver of attorney-client privileged . . . to the extent any post Put Call Agreement log entries contain only attorney-client privileged information, and not also attorney work-product, the common interest doctrine applies. At the time Otto and Uber executed the Put Call Agreement, Otto, Uber, Levandowski, Ron and Otto Trucking executed the 'Joint Defense, Common Interest and Confidentiality Agreement.'. . . With the indemnification obligation, they all shared a joint common legal interest in defending claims brought by Waymo for misappropriation of trade secrets, among other things. As the Court previously found, until this indemnification obligation arose, and until Uber and Otto had exclusive options to make the acquisition happen, they did not share a common legal interest. . . . But once the indemnification obligation arose, they shared a common legal interest in defending claims brought by Waymo. Waymo's arguments to the contrary are not persuasive.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA

Chapter: 20.1102
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
(analyzing the common interest doctrine in the context of a lawsuit by Audi against a dealer, which then sold itself to another dealer; holding that any communications relating to the sale transaction were not protected by the privilege, but that the two dealers could claim common interest protection for their joint strategy in dealing with the Audi lawsuit; "Moreover, review of those documents themselves supports the Court's finding that they should be withheld from production since these documents are, in large part, transmittal correspondence between counsel for Wyoming and Napleton that makes clear the parties' joint effort to address the legal issues that Audi had raised with them. Very often, these documents are simply cover letters or emails that accompanied draft documents that the parties were sharing for comment, and which would subsequently be provided to Audi in substantially the same form. In other cases, the correspondence is some brief acknowledgment of communication received from Audi's counsel, and scheduling further discussions between the dealerships in order to prepare a concerted response that addresses the issues Audi was pressing. Although the Court recognizes that Audi may mine these limited pieces of correspondence for significance that might not be immediately apparent, the Court finds that the probative value of the correspondence itself is in large measure especially limited and thus this entire discovery dispute ultimately winds up being about withheld communications which often have very little apparent substance to them."; "Accordingly, following review of the parties' briefs and the documents submitted in camera, the Court agrees with Wyoming Valley's assertion that the common-interest privilege applies to each of the documents identified on Logs 1 and 3 because Wyoming Valley has effectively demonstrated that it shared with Napleton the kind of substantial parallel legal interests are necessary for the common-interest privilege to be applicable to this narrow set of documents, much of it correspondence between counsel. That the parties may have shared a commercial interest both in seeing this transaction through to closing, and in overcoming Audi's opposition to the deal, does not mean that the dealerships did not also have substantially similar legal interests vis a vis Audi, which was seeking to protect its alleged rights under its contract with Wyoming Valley."; "It is difficult to read Audi's correspondence in September 2016 as doing anything less than threatening formal legal action and making specific legal demands, which Wyoming Valley and Napleton had a shared interest in addressing. Although they may have previously been on opposite sides of an arms' length transaction, in the fall and winter of 2016, Wyoming Valley's and Napleton's interests converged more closely, and became increasingly intertwined such that Napleton has recently been permitted to intervene in this case to defend the transaction that Audi has attacked. Therefore although the parties may not have shared common legal interests prior to the fall of 2016, the Court finds that they did so after Audi's September 28, 2016 letter. That letter presented a common legal threat to the parties' common commercial interests. Confronted by this common legal threat, we believe that the parties now had a common legal interest in coordinating a response to this threatened litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 20.1102
Case Name: Immunex Corp. v. Sandoz Inc., Civ. A. No. 16-1118 (CCC), 2017 U.S. Dist. LEXIS 87262 (D.N.J. June 7, 2017)
("Many aspects of the common-interest doctrine are subject to debate across the Country, including the degree of legal interest the parties must share. See Katharine Traylor Schaffizn, An Uncertain Privilege: Why the Common Interest Doctrine Does Not Work and How Uniformity Can Fix It, 15 B.U. Pub. Int. L.J. 49 (2005). Must the parties have identical interests? Substantially similar? Can the parties even be adverse in some respects? Can it be commercial or must it be legal? To be blunt, non-binding case law to support any view on any subject in this area can be found. . . . In the absence of controlling authority, this Court requires that the parties share a substantially similar legal interest in the shared communication."; "Whether a given communication has (a) an underlying privilege, and (b) was made in furtherance of a shared legal interest is usually a document-by-document consideration, which is undertaken in an abbreviated fashion below. However, as a general matter, the Court is satisfied that, if a given communication is privileged, and assuming it was made in furtherance of the licensing agreement and/or prosecution, scope, and validity of the Roche Patents, the common interest doctrine would apply to protect it.")

Case Date Jurisdiction State Cite Checked
2017-06-07 Federal NJ
Comment:

key case


Chapter: 20.1102
Case Name: In re Experian Data Breach Litig., SACV 15-01592 AG (DFMx), Slip Op. at 2, 5 (C.D. Cal. May 18, 2017)
(finding that the work product doctrine protected materials created by a forensic consultant hired by Jones Day to investigate Experian's data breach, making it unnecessary to analyze possible privilege protection; holding that: (1) the work product doctrine protected the documents; (2) plaintiffs could not overcome the work product protection; and (3) Experian did not waive the work product protection by disclosing the forensic consultant's report internally and to fellow common interest participant T-Mobile (Experian's client); explaining that "in this circuit, a 'because-of' test is used to determine whether a document was prepared in anticipation of litigation, which means that a document doesn't need to be prepared exclusively for use in litigation."; in supporting its conclusion (3), explaining as follows: "The final issue to be addressed is whether the protection of the work product doctrine over Mandiant's report was waived by Experian. Parties may disclose documents without waiving work product protection if that disclosure is consistent with maintaining the secrecy against opponents. . . . The disclosure here was very limited and closely controlled by Jones Day and Experian's in-house legal department. The report wasn't given to Experian's Incident Response Team or to the personnel working on remediation of the systems involved in the attack. Further, just before Jones Day retained Mandiant, Experian and T-Mobile, its client, entered into a joint defense agreement ('JDA') because they recognized the risk of litigation arising from the breach. And Experian's counsel gave T-Mobile's counsel the report under the JDA, in redacted form. The disclosure here doesn't amount to a waiver of the work product doctrine." (emphasis added))

Case Date Jurisdiction State Cite Checked
2017-05-18 Federal CA
Comment:

key case


Chapter: 20.1102
Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
(holding that an inventor and a patent licensee had a common interest when negotiating the license, even during that otherwise adversarial negotiation; "The Regents [In re Regents of the Univ. of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996)] court . . . held that communications between a potential licensee and an inventor/patentee were privileged under the common-interest doctrine because 'both parties had the same interest in obtaining strong and enforceable patents.'. . . It did not matter that one party had not retained the other party's attorney: 'the issue is not who employed the attorney, but whether the attorney was acting in a professional relationship to the person asserting the privilege.' The court concluded that 'the legal interest [between the potential licensee and the inventor/patentee] was substantially identical because of the potentially and ultimately exclusive nature' of the license agreement: 'Valid and enforceable patents" on the inventions 'are in the interest of both parties.'"; "It is clear . . . that communications between parties concerning the strength and enforceability of patents as they are negotiating exclusive license agreements are protected under the common-interest doctrine."; "The fact that the parties periodically disagreed concerning the division of rights between them does not mean that they did not have a common interest in the patents in question. A review of the 34 disputed communications in this category that are listed in RO's memorandum, #278-1 at 14, demonstrates that, despite CEO Martin's periodic complaints concerning Crane's perceived over-reaching, NV and Crane, with input from attorneys and executives from both sides and the inventor, were in fact seeking and receiving confidential legal assistance from one another in prosecuting the patents that concerned Crane."; "[T]he parties had a common legal interest that is widely recognized in the law, namely, the interest that potential licensees and patent owners have in successfully prosecuting patent applications as established in Regents."; "RO cites In re JP Morgan Chase & Co. Securities Litigation, 2007 U.S. Dist. LEXIS 60095, 2007 WL 2363311, at *5 (N.D. Ill. Aug. 13, 2007) for the proposition that companies that are negotiating a merger cannot have a common interest because their interests are in conflict. . . . JP Morgan is not a patent case. Here, as long as the communications between buyer and seller concern the strength and enforceability of the patents, they are primarily for a legal purpose and are protected under the common-interest doctrine.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA
Comment:

key case


Chapter: 20.1102
Case Name: Supreme Forest Prods., Inc. v. Kennedy, No. 3:16-cv-0054 (JAM), 2017 U.S. Dist. LEXIS 4421 (D. Conn. Jan. 12, 2017)
(holding that the privilege protected communications between two former company employees who had filed separate lawsuits against the same employer, using the same lawyer; finding it unnecessary for them to do an identical interest because they were jointly represented by the same lawyer rather than creating a common interest agreement; finding that the privilege did not protect the two clients' employee without the lawyer present; "[T]he attorney-client privilege may properly extend to communications that occur between an attorney in the presence of two or more clients that the attorney jointly represents."; "Here, it is clear to me that Kennedy and Welch share a common interest based on their highly similar employment claims brought against the same employer. They are for all practical purposes jointly represented by one attorney, and the fact that their attorney filed separate lawsuits rather than joining his two clients together in a single lawsuit does not dispel the application of the co-client privilege. If the clients share a common interest, the co-client rule requires joint representation, not necessarily joint litigation."; "This 'community of interest' privilege, however, differs from the co-client privilege. . . . For the co-client privilege, it suffices for the clients to have a common interest, not necessarily interests that are identical in all respects. So long as their interests are common, co-clients who consult the same lawyer would reasonably expect that their communications with the lawyer to which they are mutually privy would be protected from disclosure to third parties by the attorney-client privilege. The legitimate expectation of privilege is unmistakably higher in the co-client context than the broader community-of-interest context involving parties who are not represented by the same counsel."; "In any event, Kennedy and Welch had nearly identical legal interests. They both sought legal representation to pursue what was essentially the same major claim -- that Supreme Forest Products had violated federal law by retaliating against them when they resisted driving overweight vehicles. There were, of course, minor factual differences between their claims, but the gravamen of their complaint --Supreme Forest's alleged insistence on driving illegally loaded vehicles, and its alleged willingness to retaliate against drivers who didn't toe the line -- was the same. Although Welch had an additional claim related to his post-termination health benefits, the fact that Welch had an additional interest in his suit does not vitiate his common interest with Kennedy. I therefore find that defendants' interests were sufficiently common for them to properly invoke the co-client attorney-client privilege."; "Plaintiffs further contend that there is no evidence that Kennedy and Welch had a joint representation agreement with their counsel prior to when they were sued by plaintiffs in January 2016. But this argument ignores the course of dealing between defendants prior to January 2016 when they had both retained counsel within days of each other in May 2014 to represent them for purposes of the claims they eventually filed against Supreme Forest Products, Inc. Even if prior to January 2016 Kennedy and Welch did not have a formal written agreement of joint representation, it is clear to me that they would have justifiably expected their co-client communications with counsel to be protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2017-01-12 Federal CT
Comment:

key case


Chapter: 20.1102
Case Name: DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016)
January 25, 2017 (PRIVILEGE POINT)

"An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part I"

Common interest agreements and joint representations share many characteristics. Both types of arrangements involve lawyers engaging in protected communications with multiple clients. But they are structurally distinct. In common interest agreements, separately represented clients cooperate in a common legal strategy. In a joint representation, the same lawyers represent several clients on the same matter. As long as everything rolls along smoothly, the structural difference has few privilege consequences. But adversity reveals a key privilege distinction.

In DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016), plaintiff DePuy and defendant Hospital had worked together on patent prosecutions – but later become litigation adversaries. DePuy resisted the Hospital's attempt to discover communications to and from DePuy's in-house counsel. The in-house counsel claimed that DePuy and the Hospital had only entered into a common interest agreement – noting that O'Melveny & Myers had acted as patent "prosecution counsel" on behalf of both companies. In contrast, the Hospital "claim[ed] that DePuy's in-house counsel jointly represented both parties." Id. at *4. The court recited facts that could have proven either a common interest agreement or a joint representation: DePuy and the Hospital shared confidential information and cooperated on a common legal strategy; DePuy's in-house counsel communicated with and gave direction to O'Melveny, etc. But the court ultimately concluded that DePuy's in-house counsel had jointly represented DePuy and the Hospital -- rather than represented just DePuy in a common interest arrangement with the separately represented Hospital.

Given the privilege implication similarities between a common interest agreement and a joint representation, one might wonder why DePuy's in-house counsel argued so strenuously against the latter. Next week's Privilege Point will explain the court's key reason for finding such a joint representation, and its frightening implication.

Case Date Jurisdiction State Cite Checked
2016-12-01 Federal IN
Comment:

key case


Chapter: 20.1102
Case Name: DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016)
February 1, 2017 (PRIVILEGE POINT)

"An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part II"

Last week's Privilege Point described an in-house counsel's vigorous argument that she had represented her employer/client in a common interest agreement with a hospital in jointly prosecuting patents -- rather than having jointly represented both her employer/client and the hospital. DePuy Orthopaedics, Inc. v. Orthopaedic Hospital, Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016).

After reciting facts that could have evidenced either a common interest agreement or a joint representation, the court explained why it agreed with the Hospital that there had been a joint representation: "[T]he evidence does not show that DePuy's in-house counsel . . . provided any kind of disclaimer about representation when answering the Hospital's questions with legal information or consequence regarding the patent prosecution." Id. at *12-13 (emphasis added). The court then gave the punchline. Because DePuy's in-house counsel had jointly represented DePuy and the Hospital, the former joint client Hospital could discover "DePuy's internal communications related to the [patent] prosecution." Id. at *13 (emphasis added). Thus, the Hospital's understandable desire to discover these internal DePuy communications had led it to "vociferously contend[] that it believed that DePuy's in-house counsel was acting on its behalf." Id. at *12.

If common interest participants later become litigation adversaries, privilege protection evaporates for any communications they have shared, but remains for each participant's internal communications with its own lawyer. In a joint representation, such later adversity normally allows any former joint client to discover all of their joint lawyer's communications on that matter with any jointly represented clients. In-house and outside counsel should remember this key distinction, and explicitly define any relationship if there might be confusion – including providing socially awkward but legally significant disclaimers of a joint representation.

Case Date Jurisdiction State Cite Checked
2016-12-01 Federal IN
Comment:

key case


Chapter: 20.1102
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("The protections accorded to attorney work product are not waived in this case because the document was disclosed to co-plaintiffs' lawyers. The Court finds that at the time the document was created, Uretek and Trelleborg had a sufficient 'common interest' to defeat any claim of third-party waiver. Their comments to one another aiming to formulate a joint position on matters pertinent to the dispute at issue in this case were clearly disseminated in the context of a common legal strategy, and as such remain privileged. Accordingly, Document 198 does not need to be produced.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 20.1102
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
(holding that certain corporate affiliates must satisfy the common interest agreement to successfully assert privilege and avoid waiver for their communications with each other; "Plaintiffs argue that Document 3 should nevertheless be revealed because YKK Corporation and its wholly owned subsidiary YKK Corporation of America (YCA) do not share a common legal interest. Because Attorney John Castellano was Chief Legal Counsel of YCA, Plaintiffs contend that any communications he had with YKK Corporation and any communications incorporating his advice forwarded by employees of YKK Corporation would lose their privilege by virtue of having been disseminated to a third party. They further argue that the common interest rule does not apply because (1) only YKK Corporation, and not YCA, admitted that they were party to the License Agreement at issue in this case pursuant to plaintiffs' Requests for Admissions and (2) YCA and other YKK affiliates denied that they were jointly and severally liable for the actions of YKK Corporation. Defendants, for their part, counter that entities under common ownership sharing privileged information are always considered to be a single entity for the purpose of attorney-client privilege. Music Sales, 1999 U.S. Dist. LEXIS 16433, 1999 WL 974025, at *7 (holding that corporations related through ownership or control need not prove common legal interest)."; "The Court does not adopt the per se standard that Defendants urge; in certain circumstances, commonly owned subsidiaries simply do not have the common purpose in litigation necessary for the invocation of the doctrine. . . . For example, in Gulf Lands Leasing v. Bombardier Capital, Inc., 215 F.R.D. 466 (S.D.N.Y. 2003), the court considered the case of two defendant subsidiaries that were wholly owned by the same corporation. Although the corporations shared a common commercial interest in the success of the litigation, they had two different agreements with the plaintiff, separate legal counsel, and showed no indicia of coordinating a legal strategy beyond occasional discussions between co-counsel. Id. at 473. On this record, the court found that communications between the two companies were not privileged. This approach, which considers the real relationship between companies and their counsel, is preferable considering the great diversity of legal and factual scenarios that corporate litigation presents."; "Nevertheless, in this case, Defendants have amply proven that YKK Corporation and YCA may invoke the common interest doctrine to maintain their communications privileged.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 20.1102
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
(holding that certain corporate affiliates must satisfy the common interest agreement to successfully assert privilege and avoid waiver for their communications with each other; "Plaintiffs argue that Document 3 should nevertheless be revealed because YKK Corporation and its wholly owned subsidiary YKK Corporation of America (YCA) do not share a common legal interest. Because Attorney John Castellano was Chief Legal Counsel of YCA, Plaintiffs contend that any communications he had with YKK Corporation and any communications incorporating his advice forwarded by employees of YKK Corporation would lose their privilege by virtue of having been disseminated to a third party. They further argue that the common interest rule does not apply because (1) only YKK Corporation, and not YCA, admitted that they were party to the License Agreement at issue in this case pursuant to plaintiffs' Requests for Admissions and (2) YCA and other YKK affiliates denied that they were jointly and severally liable for the actions of YKK Corporation. Defendants, for their part, counter that entities under common ownership sharing privileged information are always considered to be a single entity for the purpose of attorney-client privilege. Music Sales, 1999 U.S. Dist. LEXIS 16433, 1999 WL 974025, at *7 (holding that corporations related through ownership or control need not prove common legal interest)."; "The Court does not adopt the per se standard that Defendants urge; in certain circumstances, commonly owned subsidiaries simply do not have the common purpose in litigation necessary for the invocation of the doctrine. . . . For example, in Gulf Lands Leasing v. Bombardier Capital, Inc., 215 F.R.D. 466 (S.D.N.Y. 2003), the court considered the case of two defendant subsidiaries that were wholly owned by the same corporation. Although the corporations shared a common commercial interest in the success of the litigation, they had two different agreements with the plaintiff, separate legal counsel, and showed no indicia of coordinating a legal strategy beyond occasional discussions between co-counsel. Id. at 473. On this record, the court found that communications between the two companies were not privileged. This approach, which considers the real relationship between companies and their counsel, is preferable considering the great diversity of legal and factual scenarios that corporate litigation presents."; "Nevertheless, in this case, Defendants have amply proven that YKK Corporation and YCA may invoke the common interest doctrine to maintain their communications privileged.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 20.1102
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
(holding that certain corporate affiliates must satisfy the common interest agreement to successfully assert privilege and avoid waiver for their communications with each other; "Entities that are under common ownership must still demonstrate that this rule applies, such as by making a showing that a common attorney was representing both corporate entities or that they otherwise shared a common legal interest. Gulf Islands Leasing, Inc. v. Bombardier Capital, Inc., 215 F.R.D. 466, 473 (S.D.N.Y. 2003) ('Proponent[s] of the privilege may not rely solely on the fact that the entities at issue are affiliated with each other.'); but see Music Sales Corp. v. Morris, No. 98-CV-9002 (SAS)(FM), 1999 U.S. Dist. LEXIS 16433, 1999 WL 974025, at *7 (S.D.N.Y. Oct. 26, 1999) (finding that communications from '[c]orporations which are related through common ownership or control . . . . are treated in the same way as intra-corporate communications' without demonstrating that they have a common legal interest).")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 20.1102
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("The Court further notes that, in light of the the indemnification provisions of the APA, Defendants' communications with each other regarding claims in this litigation would fall under the joint defense privilege.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 20.1102
Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(holding that two general partners who were in a dispute did not waive any privilege by talking to the general partnership's lawyer; "Whether Seidl and Igra have a dispute between them and whether Seidl actually consents to the lawsuit brought by TRT is an issue to be resolved between them either informally or through the pending Hawaii action. However, Seidl and Igra are still the two general partners of TRT, and thus any communications between them, as agents of TRT, regarding TRT's counsel's advice do not waive the privilege."; "Here, Igra and Seidl communicated about the merits of this litigation and the advice from TRT's counsel regarding this litigation, and thus the common interest doctrine encompasses their communications. Accordingly, the Court finds that communications between Igra and Seidl that discuss TRT's counsel's advice did not waive TRT's privilege.")

Case Date Jurisdiction State Cite Checked
2016-05-17 Federal CA

Chapter: 20.1102
Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("Broadly speaking, under federal law there are two approaches to the 'common interest' exception. The first is to require that the client and third party have a legal interest in common, as opposed to a merely commercial interest."; "The second approach to 'common interest' requires only that the 'third party and the privilege holder are engaged in some type of common enterprise and that the legal advice relates to the goal of that enterprise.'"; "Mr. Al-Saleh's disclosures to Burford were necessary to obtain informed legal advice, specifically advice as to how to prosecute a collection action against IOTC USA and how to fund that action. Mr. Al-Saleh, his counsel, and Burford did not intend to disclose their communications to third parties. The information exchanged between the parties was for the limited purpose of assisting in their common cause, which was to propound litigation to collect on a claim against IOTC USA."; "The Court rules that all communications among Burford, Mr. Al-Saleh, and his counsel are protected from discovery as they are subject to the attorney-client privilege as a result of application of the common interest exception. The Third Motion to Compel is thus subject to denial to the extent it seeks an order directing the delivery of such documents. This basis, alone, is sufficient for such relief.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal FL
Comment:

key case


Chapter: 20.1102
Case Name: Welby, Brady & Greenblatt, LLP v. United States Dept. of Health and Human Services, No. 15-cv-195 (NSR), 2016 U.S. Dist. LEXIS 56605 (S.D.N.Y. April 27, 2016)
("The Marquis Declaration establishes that HHS, DOS, and EOC Nassau shared a common legal interest in ensuring that the Judgment is not satisfied with federal grant money administered by HHS and DOS. . . . Furthermore, the Government's Vaugh index evidences that communications between HHS, DOS, and EOC Nassau concerned a joint litigation strategy with respect to ensuring the Judgment is not satisfied with federal grant funds.")

Case Date Jurisdiction State Cite Checked
2016-04-27 Federal NY

Chapter: 20.1102
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, "Endo points out that courts have applied the common interest doctrine to protect communications between patent holders and exclusive licensees with respect to proceedings before the PTO because both entities share a common legal interest: the issuance and enforceability of the underlying patents. See, e.g., In re Regents of Univ. of California, 101 F.3d 1386, 1390 (Fed. Cir. 1996) ('we conclude that the legal interest between Lilly and UC was substantially identical because of the potentially and ultimately exclusive nature of the Lilly -- UC license agreement. Both parties had the same interest in obtaining strong and enforceable patents.'). But that is simply not the case here, where Endo and Teikoku's common interest was keeping other drugs off the market, whether the justification was for commercial or public safety reasons."; "The aim of the Citizen Petition was not to seek or maintain approval of Lidoderm, but instead to convince the FDA to maintain higher standards and keep competing generics off the market until they met those higher standards. That is a common commercial interest of Endo and Teikoku. The fact that Endo was making a legal argument among others in its Petition (that the FDA should adhere to its own regulations for bioequivalence) does not turn Endo and Teikoku's joint commercial interest into a legal one."; "Where the relief Endo sought at the FDA was not to protect its legal interests in its ability to sell Lidoderm (or Teikoku's legal interests in protecting the strength of its patents covering Lidoderm), but simply to have the FDA adhere to its own regulations in order to keep other drugs off the market, defendants' interests were commercial.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 20.1102
Case Name: Rembrandt Patent Innovations, LLC v. Apple Inc., Nos. C 14-05094 & -05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016)
April 6, 2016 (PRIVILEGE POINT)

"Courts Analyze the Common Interest Doctrine's Application in a Patent Context"

Courts recognizing the common interest doctrine limit its non-waiver effect to participants' common legal rather than financial interests. It can be difficult to apply this abstract principle to communications between a patent owner and another company that will earn royalties from the patent's use. The latter has an obvious interest in the patent's enforceability, but is that a legal or merely a financial interest?

In Rembrandt Patent Innovations, LLC v. Apple Inc., the court dealt with the common interest doctrine's applicability to communications between patents' inventors and their employer (the University of Pennsylvania), which had retained royalty rights but not ownership rights. Nos. C 14-05094 & -05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016). The court acknowledged that the Ninth Circuit had not addressed "the scope of a common legal interest with regard to transactions between the inventors of a patent and partners or potential partners in business ventures seeking to monetize that patent." Id. At *14. The court ultimately held that the common interest doctrine protected the communications -- because the inventors and Penn had a common legal interest "in licensing and enforcement opportunities, perfecting title in the patent, and defending the patent's validity."Id. At *16. About three weeks later, the District of Delaware reached the opposite conclusion. In Delaware Display Group LLC v. Lenovo Group Ltd., the court assessed a privilege claim for files belonging to non-party Rambus -- which had similarly retained patent royalty rights but not ownership rights. Civ. A. Nos. 13-2108-, -2109- & -2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016). The court rejected the patent owner's argument that it shared a common interest with Rambus in assuring the patents' strength and enforceability. As the court put it, "[p]laintiffs' logic would find that any seller with rights to royalty payments is engaged in a common legal cause with its buyer. The only interest Rambus retained in the patents is a commercial one." Id. At *17.

Distinguishing between a legal and financial interest can be very difficult. Courts' disagreement about the common interest doctrine's applicability in the patent setting highlights the risk of relying on the common interest doctrine in seeking to avoid waiver of privilege protection.

Case Date Jurisdiction State Cite Checked
2016-02-04 Federal CA
Comment:

key case


Chapter: 20.1102
Case Name: In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016)
June 22, 2016 (PRIVILEGE PONT)

"Court Takes a Liberal View of Privilege for Communications Between a Plaintiff and a Litigation Funder"

With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the former to avoid a waiver when disclosing privileged communications to the latter, and whether litigation funders can create protected work product.

In In re International Oil Trading Co. 548 B.R. 825 (Bankr. S.D. Fla. 2016), the court held that the plaintiff and its litigation funder Burford Capital shared a sufficiently common legal interest, so that the plaintiff did not waive its privilege protection by disclosing privileged communications to Burford. And the court even went beyond that — finding that Burford was a protected client agent assisting the company "'in furtherance of the rendition of legal services,'" and therefore within the privilege on that separate ground. Id. At 834 (citation omitted). The court also held that Burford could create protected work product, concluding that "[i]t does not matter that Burford's obvious purpose is to obtain a return on its investment, just as it does not matter that counsel's purpose typically is to earn a fee." Id. At 836.

Not all courts share this liberal attitude toward privilege and work product protection in the context of litigation funders, but the trend seems to be in that direction.

Case Date Jurisdiction State Cite Checked
2016-01-01 Federal FL
Comment:

key case


Chapter: 20.1102
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("We also find that the common interest doctrine applies because Solvay and Abbott 'share[d] at least a substantially similar legal interest' in actual or potential litigation against a common adversary. . . . The common interest doctrine applies 'even if there is no 'final' agreement or if the parties do not ultimately unite in a common enterprise.'"; "Having signed an agreement to acquire Solvay on September 26, 2009, Abbott and Solvay shared a common interest in litigation concerning Solvay products when these emails were exchanged in October 2009. In addition, unlike the due diligence documents discussed above, these email communications were made "to obtain informed legal advice which might not have been made absent the privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA

Chapter: 20.1102
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("[S]everal courts have held that an insurer shares a common legal interest with the insured in the outcome of litigation, even when their potential defenses are not perfectly aligned.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 20.1102
Case Name: Martinez v. Liberty Insurance Corporation, Civ. A. No. 15-cv-00838-REB-MEH, 2015 U.S. Dist. LEXIS 138169 (D.D.C. Oct. 9, 2015)
(holding that a homeowner plaintiff's public adjusting firm was outside privilege protection, but had a valid common interest with the homeowner; "With these legal principles in mind and absent evidence to the contrary, the Court finds that, by the Plaintiffs' retention of Mr. Henderson [Lawyer] and Matrix [public adjusting firm] to assist them in securing insurance benefits from Defendant, the Plaintiffs, their attorney, and Matrix engaged in a common legal interest under Colorado law.")

Case Date Jurisdiction State Cite Checked
2015-10-09 Federal DC

Chapter: 20.1102
Case Name: The Hilsinger Co. v. Eyeego, LLC, Civ. A. No. 13-cv-10594-IT, 2015 U.S. Dist. LEXIS 106725 (D. Mass. Aug. 13, 2015)
(finding that a patent licensor and licensee could enter into a valid common interest agreement even before the final license deal was signed; "Although the parties had not finalized their licensing agreement, they were in the midst of negotiating that agreement and, as evidenced by the content of their e-mails, were pursuing a common legal strategy concerning the enforceability of the patents-in-suit.")

Case Date Jurisdiction State Cite Checked
2015-08-13 Federal MA

Chapter: 20.1102
Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)
(holding that a relator's disclosure statement to the government deserved at least fact work product protection; noting that the Fifth Circuit had not decided whether the opinion work product doctrine applied as well; "The Court finds that the disclosure statements submitted to the Government by Relators pursuant to 31 U.S.C. § 3730(b)(2) constitute at least ordinary work product for the purposes of the work product doctrine. Public policy favors the full and frank communication between Relators and the Government concerning the prosecution of the case, and as such, the communications must be protected from disclosure. Therefore, protection was not waived when Relators disclosed the information to the Government as the common-interest doctrine applies.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal TX

Chapter: 20.1102
Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)
(finding that a designer and a manufacturer of a product shared a common interest; implying that the companies were also related companies, but without describing the relationship; "In the case at bar, the Defendant (the company that sold the granulator at issue in the instant litigation), Glatt GIT (the company that designed and engineered the granulator), and Glatt GST (the company that manufactured the granulator) share a legal interest in defending against the threat of litigation from Plaintiff and recovering the outstanding balance on the contract with Plaintiff. Their interests are sufficiently aligned to bring them within the scope of the common interest doctrine. In light of this, no waiver occurred when Defendant shared its internal confidential reports concerning the three inspections . . . .")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal IL

Chapter: 20.1102
Case Name: Terra Foundation for American Art v. Solomon+Bauer+Giambastiani Architects, Inc., Case No. 14 C 3012, 2015 U.S. Dist. LEXIS 56471 (N.D. Ill. April 29, 2015)
(finding the common interest doctrine must relate to "a litigation interest"; "SBG and Exergen had a business relationship in which Exergen performed mechanical engineering services as SBG's sub-consultant in the design of the art vaults for Terra. . . . Prior to the allegedly privileged communications between SBG and Exergen, Terra raised concerns with SBG about the design and function of the art vaults. After Terra raised those concerns, SBG had communications with its counsel and Exergen's president was copied. SBG argues that once Terra communicated to SBG that Terra would pursue legal remedies against SBG for alleged defects in the art vaults, it was reasonable for SBG and Exergen to jointly consult SBG's counsel regarding their mutual concerns about the potential threat of litigation."; "In this case, the Court finds that SBG and Exergen similarly share an identical legal interest. . . . Even though Terra's threat of litigation was directed only to SBG, it certainly was reasonable to assume that the mechanical engineering consulting services Exergen provided in the design of the art vaults potentially could be implicated by Terra's complaints of alleged defects in the work SBG performed on the art vaults.")

Case Date Jurisdiction State Cite Checked
2015-04-29 Federal IL
Comment:

key case


Chapter: 20.1102
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "[A] common interest agreement does not have to be reduced to writing in order for the doctrine to apply. . . . The credible and uncontradicted Affidavit of Meyers, an officer of the State of South Carolina, establishes the requisite agreement between the Trustee and SCAG, prior to the alleged waiver, to cooperate in their investigations and development of legal theories, which led to the filing of the SCAG Administrative Proceeding and the Complaint commencing this adversary proceeding, and thus supports the application of the common interest doctrine. The Court notes that the Trustee's joint efforts with SCAG are consistent with his statutory duties to collect and reduce to money the property of the estate under 11 U.S.C. § 704, including causes of action, and to investigate and report to the U.S. Attorney pursuant to 18 U.S.C. § 3057 if he believes a crime has been committed. The MK Defendants further argue that the Common Interest Memorandum makes no mention of the June 16, 2011 express waiver effected by Trustee's counsel. Even if the June 16, 2011 e-mail was construed broadly to encompass more than the Trustee's limited position on Morgan Keegan's production of documents to the SCAG in response to the SCAG Subpoena, the application of the common interest doctrine prevents the June 16, 2011 email from operating as a waiver because the Trustee cannot unilaterally waive the privilege without the consent of SCAG, and there is no evidence that SCAG consented to a waiver of any applicable privilege.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 20.1102
Case Name: Lislewood Corp. v. AT&T Corp.; AT&T Corp. v. Marriott Int'l, Inc., No. 13 CV 1418, 2015 U.S. Dist. LEXIS 43089 (N.D. Ill. March 31, 2015)
(analyzing the common interest doctrine; finding lessee AT&T and subleasee Marriott could enter into a common interest agreement, because the latter was compelled to indemnify the former; noting that AT&T and Marriott had some adverse interests, but that did not prevent them from enjoying privilege protection for communications on which they shared a common interest; "[T]his contention ignores the fact that AT&T's third-party complaint and the Sublease explicitly acknowledge Marriott's obligation to indemnify AT&T for any claims arising out of its use of the Premises. . . . In other words, the question of Marriott's indemnification obligation arises precisely because it is an indemnitor of Lislewood's claim against AT&T. . . . Accordingly, in this context AT&T and Marriott do share a common legal interest -- that AT&T is found not liable in Lislewood's original action. . . . AT&T and Marriott claim joint-defense privilege over communications concerning the Sublease, repairs, tax payments, engineering notes, communication about landlords' requested repairs, turnover issues, and the joint-defense agreement itself. . . . These are precisely the issues about which AT&T and Marriott have a common interest adverse to Lislewood and to which the common-interest doctrine therefore applies.")

Case Date Jurisdiction State Cite Checked
2015-03-31 Federal IL

Chapter: 20.1102
Case Name: Mobile Medical International Corp. v. Advanced Mobile Hosp. Sys. Inc., Case No. 2:07-cv-231, 2015 U.S. Dist. LEXIS 23110 (D. Vt. Feb. 24, 2015)
(holding that a board member did not waive a company's privilege by giving it to another partner in his investment firm, was a "backup" on investments; "The question presented here is whether two private equity partners, only one of which was directly involved in MMIC's governance, shared a sufficient community of interests to preserve the attorney-client privilege. This case is likely unique in that Mr. Morris was specifically designated as Mr. Beinecke's 'backup' on the MMIC investment. Accordingly, Mr. Morris was different from other partners at BVP, BVP staff, and other MMIC investors generally. . . . On these limited facts, the Court finds that Mr. Morris and Mr. Beinecke were engaged in a common enterprise, and to the extent that Mr. Beinecke's interest was legal rather than commercial, so too was the interest of Mr. Morris as his backup.")

Case Date Jurisdiction State Cite Checked
2015-02-24 Federal VT

Chapter: 20.1102
Case Name: Callwave Comm., LLC v. Wavemarket, Inc., No. C 14-80112 JSW (LB), 2015 U.S. Dist. 22374 (N.D. Cal. Feb. 23, 2015)
(finding that a patent licensee and licensor could enter into a valid common interest agreement; "Location Labs says that it shares with AT&T a common interest 'in a joint defense against the allegations by Callwave.'. . . It says that it and AT&T, 'a licensee and licensor, had a common interest in defending against the claims of Callwave, extending to any indemnification provided, and it is precisely these matters of common interest that were discussed in the document at issue.'. . . The court agrees. First, both Location Labs and AT&T have an interest in defeating Callwave's claims of patent infringement in the Underlying Litigation. That they also have negotiated possible indemnification with respect to those claims does not necessarily cancel that out.")

Case Date Jurisdiction State Cite Checked
2015-02-23 Federal CA

Chapter: 20.1102
Case Name: Perez v. Clearwater Paper Corp., Case No. 3:13-CV-00461-BLW, 2015 U.S. Dist. LEXIS 20143 (D. Idaho Feb. 17, 2015)
(finding that the government and a whistleblower could participate in a common interest arrangement; "A common interest exists between the government and Tenny. Indeed, their interests are nearly identical. Section 11(c) of the Occupational Safety and Health Act gives the Secretary of Labor sole enforcement authority in a retaliation case. There is no private right of action.")

Case Date Jurisdiction State Cite Checked
2015-02-17 Federal ID

Chapter: 20.1102
Case Name: Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal
Comment:

key case


Chapter: 20.1102
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "The defendants maintain a joint representation privilege applies. Joint representation refers to situations where two parties share a common attorney for representation in a particular matter. Joint representation, for the purposes of this opinion, refers only to multiple clients represented by a single attorney or firm in a particular matter. Because both the City and HSWA are independently represented, it is not necessary to analyze a joint representation privilege.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY

Chapter: 20.1102
Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *30-31, *32 (C.D. Cal. Sept. 11, 2014)
("[T]he common interest doctrine would preserve privilege if the documents were shared with the expectation of confidentiality and sharing was necessary to accomplish the privilege holder's purpose in seeking legal advice. Documents are routinely shared with the Creditors' Committee (as well as other interested parties such the Oversight Committee) in bankruptcy both with an expectation of confidentiality and as necessary to accomplish the debtor's purpose in retaining counsel in chapter 11 (confirming a plan of reorganization). The federal cases described below, as well as the Court's own experience, strongly confirm the need for debtors to be able to share information with such committees and interested parties without waiving privilege. . . . In the Trust's favor, a plethora of federal courts have found a common interest between debtors and creditors' committees (and other participants in bankruptcy)")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal CA

Chapter: 20.1102
Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "The common interest exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties applies to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties. . . . The disclosure may occur prior to the commencement of litigation. . . . Communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information. . . . Moreover, the common interest need not be identical; a common purpose will suffice."; "Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. . . . Moreover, the rule should be broad enough to encompass the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement.")

Case Date Jurisdiction State Cite Checked
2014-07-21 State NJ

Chapter: 20.1102
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *18 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The parties to whom the emails were directed were part of the Offutt organization or an employee of a wholly owned subsidiary of Offutt. The email communications involved legal advice about ongoing litigation. In this case, it would appear that the associational privilege doctrine or the common interest doctrine would be sufficient grounds to maintain the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.1102
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
(analyzing the common interest doctrine; "The 12/18 Letter was created at or near the outset of the joint defense relationship. Even at that early stage, all of the elements of the Bergonzi [United States v. Bergonzi, 216 F.R.D. 487, 495-96 (N.D. Cal. 2003)] test were met. There was a common interest, and the communication was about the interest that the parties shared. Under these circumstances, there was at least an implied common interest privilege as to the first communications seeking to provide early views on matters of common concern and to negotiate a formal JDA. Accordingly, the 12/18 Letter is protected by the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 20.1102
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *16 17, *20-21 (N.D. Cal. Mar. 17, 2014)
(analyzing the common interest doctrine; "The court has reviewed these emails in camera and determined that they are protected by the joint defense privilege. At time the emails were sent, Hayes Scott was representing two neighbors against whom Plaintiff had filed petitions for restraining orders and Michael Allen was representing a third. While Plaintiff had not filed a petition against Scott Armstrong, (HSP's client and another of Plaintiff's neighbors), Hayes Scott avers that Plaintiff had made allegations against Armstrong, and Armstrong believed he would soon be targeted by Plaintiff. Thus the neighbors' attorneys had reasons to work together toward a common objective, i.e. defending against a legal campaign that Plaintiff had aimed at neighbors who testified against him in his criminal trial, or were otherwise supportive of the criminal prosecution. That there is no written agreement memorializing a joint defense agreement is of no moment, as a joint defense may be implied from the situation and the context of the emails. The emails pertain to the matter in which the parties have a joint legal interest, and the communication is designed to further that specific legal interest."; "[T]he clients of Hayes Scott, HSP, and Michael Allen have a joint interest in defending themselves against Plaintiff's various actions. This joint defense effort also includes those attorneys' decision to reveal Plaintiff's alleged misbehavior to the RCPD, which is premised on supposedly false police reports about the same underlying events that form the basis of Plaintiff's petitions for restraining orders. This is ample basis for implying a joint defense, even in the absence of a written joint defense agreement. Accordingly, Plaintiff's motion to compel the production of this document is denied.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 20.1102
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *9 10 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "[I]t is clear that the common interest doctrine may have some applicability. The State and Callahan were co-Plaintiffs in a lawsuit against the same adversary and the parties shared the common legal interest of obtaining compliance by IHSA with disability rights laws. The fact that Callahan was willing to accept via settlement something less than the full relief originally requested in the Complaint does not automatically preclude the State from invoking the common interest doctrine to shield from discovery otherwise privileged communications with her. Instead, among other things, given the State's active involvement in attempts to resolve this matter on Callahan's behalf, it may have been entirely reasonable for the State to have the expectation that communications between Callahan and her attorneys and attorneys from the Attorney General's office regarding this matter would remain confidential.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 7/14

Chapter: 20.1102
Case Name: Ill. ex rel. Madigan v. Ill. High Sch. Ass'n, No. 12-cv-3758, 2014 U.S. Dist. LEXIS 16099, at *7 (N.D. Ill. Feb. 10, 2014)
(analyzing the common interest doctrine; ultimately concluding that a state and co-plaintiff could enter into a common interest agreement in pursuing a claim for unlawful discrimination against disabled high school athletes; "The common interest doctrine also can be applicable to communications between a party and a non-party, including communications between a government agency and aggrieved individuals on whose behalf the government brings suit. For example, courts have applied the common interest doctrine in cases involving the Fair Housing Act and Equal Employment Opportunity Commission, despite the fact that the aggrieved persons were not represented by counsel nor were the individuals parties to the lawsuits in question.")

Case Date Jurisdiction State Cite Checked
2014-02-10 Federal IL B 6/14

Chapter: 20.1102
Case Name: Seahaus La Jolla Owners Ass'n v. Superior Court, 196 Cal. Rptr. 3d 396, 406 (Cal. Ct. App. 2014)
("[W]e conclude that the Association's duties and powers include communicating with those parties who have closely aligned common interests, and the individual homeowners at the development have such common interests in this particular context. On balance, these circumstances show that the Association and its counsel, and the individual homeowners who participated in the litigation meetings, maintained a reasonable expectation that information to be disclosed about the status of the litigation was confidential in nature."; "We conclude that the subject litigation meetings were held to accomplish the purpose for which the Association's lawyers were consulted. . . . The common interest doctrine and its protection of confidentiality of these communications apply as a matter of law to these circumstances.")

Case Date Jurisdiction State Cite Checked
2014-01-01 State CA B 8/14

Chapter: 20.1102
Case Name: Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 284 (W.D. Pa. 2014)
(analyzing documents created during a post-accident investigation, and application of the common interest doctrine; "In addition, Patterson's [employer of a worker who died at an oil rig] interests are aligned with Chesapeake. Patterson's potential obligation to indemnify Chesapeake for any liability plaintiff establishes against it aligns Patterson's interests with Chesapeake and those defendants' whose liability would lead back to liability against or otherwise implicate the legal duties of Chesapeake. For the purposes of confronting and mounting a defense against plaintiff's claims, Patterson's interests are one and the same with these defendants. Thus, as between Patterson and these defendants the common interest requirement is satisfied."; "It follows that as long as the communications were made in the course of these parties' common interest and they were undertaken in furtherance of that joint undertaking, they continue to be protected by the privileges. Such communications are consistent with and in furtherance of the purposes underlying each privilege. Consequently, they continue to enjoy the protection afforded to the respective privileges [work product doctrine protection].")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA B 8/14

Chapter: 20.1102
Case Name: FDIC v. Fid. & Deposit Co., No. 3:11-cv-00019-RLY-WGH, 2013 U.S. Dist. LEXIS 167833, at *9-10 (S.D. Ind. Nov. 26, 2013)
(finding that an insurance company could not depose a lawyer who had represented a bank for which the FDIC was acting as receiver; noting that the lawyer had represented the bank in several matters, but no longer represented the bank after it was taken over by the FDIC; "[A]ny communications between Mr. Rifken [lawyer], the Pearlman Bankruptcy Trustee, and other members of the Pearlman Bankruptcy Creditors Committee are protected by the common interest doctrine because they share a common legal interest in the maximization of the bankruptcy estate.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal IN B /14

Chapter: 20.1102
Case Name: Biolumix, Inc. v. Centrus Int'l, Inc., Case No. 08-11418, 2013 U.S. Dist. LEXIS 162002, at *4-5 (E.D. Mich. Nov. 14, 2013)
(holding that a company and its former subsidiary entered into a common interest agreement, because the plaintiff had made claims against both of them; "Eastman previously owned Centrus. The Edens [plaintiffs] have made adverse claims common to both Eastman and Centrus during the times relevant to the subject sixty-seven Eastman documents. The Court is satisfied that Centrus has successfully asserted attorney-client privilege under the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal MI B 5/14

Chapter: 20.1102
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *34-36 (D. Conn. Nov. 14, 2013)
("[T]he Court finds that the common interest doctrine is applicable to communications between the IAC's [trade association] attorneys, Progressive, and the IAC members which convey or seek legal advice. . . . [T]he communications between the IAC's attorneys, the IAC's members, and Progressive demonstrate a clear 'cooperation in formulating a common legal strategy.' . . . [T]he documents the Court reviewed were 'directed at advancing the joint interest [of the IAC's members] vis-à-vis the rest of the world.' . . . It is apparent that the IAC's attorneys advised the members and coordinated their legal efforts with respect to proposed legislation, regulation, and potential litigation. As such, the Court GRANTS IN PART the motions to quash to the extent that the subpoenas seek communications protected by the extension of the common interest doctrine, as applied to communications between the IAC's attorneys, Progressive, and the IAC's members. However, the Court directs the IAC to include common interest doctrine assertions in its privilege log for any responsive documents it seeks to withhold.")

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal CT B 5/14

Chapter: 20.1102
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *26 (D. Del. Oct. 25, 2013)
("[T]he government makes another waiver argument: that some of the withheld materials were shared widely among individuals who work for the Taxpayer, as well as individuals who were only employed by related entities. . . . The Court is persuaded by the Taxpayer that it had common interests with its parent and other affiliated entities and that 'the presence of the individuals participating in the communications was necessary for obtaining or acting upon the legal or tax advice sought.'. . . The government has failed to show that there was a waiver.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 20.1102
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *17-18 (D. Md. Aug. 16, 2013)
(holding that the common interest doctrine protected communications among family members; "[W]hile Plaintiff has not named Arlette or Christian Ngoubene in this lawsuit, in her complaint she refers to 'the conspiracy that existed between all members of the Ngoubene Family to force Plaintiff to perform domestic services for them.'. . . This accusation supports Defendants' apprehension regarding the breadth of Plaintiff's lawsuit. . . . It is possible that Plaintiff eventually may direct her claims towards Arlette or Christian Ngoubene. Thus, it is reasonable to include Arlette and Christian Ngoubene within the scope of Defendants' assertion of the common interest rule.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 20.1102
Case Name: SCR-Tech LLC v. Evonik Energy Servs. LLC, 2013 NCBC LEXIS 38 ¶¶ 24, 26 (N.C. Super. Ct. Aug. 13, 2013)
(holding corporations that were once affiliated but are no longer affiliated may nevertheless enter into a common interest agreement; "The court perceives a distinction between, on the one hand communications between Ebinger [former owner of plaintiff] and SCR-Tech to coordinate positions to be taken in the separate lawsuits between them and Defendants, and on the other hand, communications by which Ebinger provided SCR-Tech assistance in the present litigation pursuant to the Cooperation Agreement. While the issues in the two lawsuits were somewhat distinct, the court believes that the fact that each was an adverse party to Defendants involving related technology is adequate to support a common interest privilege so long as the communications were designed to pursue a coordinated strategy. On the other hand, communications intended solely to facilitate SCR-Tech's pursuit of its claims in the present lawsuit may relate to a common business interest, but do not rise to a level of shared legal interest adequate to support a common interest privilege. More specifically, the court concludes that Ebinger's interest, evidenced by the Cooperation Agreement and SCR-Tech's description of the shared interest, is a business interest, not a legal interest in the trade secrets and confidential information implicated by the present lawsuit."; "In sum, as to those communications in and after 2010, the court concludes that communications between SCR-Tech, Ebinger, and their counsel for the purposes of developing and pursuing joint strategies in response to claims or defenses asserted separately against them by Defendants are privileged. However, other communications between them to support SCR-Tech's pursuit of its claims against Defendants pursuant to and because of the Cooperation Agreement are not privileged simply because of a former common interest in and/or development of the underlying catalyst regeneration technology.")

Case Date Jurisdiction State Cite Checked
2013-08-13 State NC B 4/14

Chapter: 20.1102
Case Name: Prowess, Inc. v. RaySearch Labs. AB, Civ. No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 67047, at *7 (D. Md. May 9, 2013)
(holding that a patentee and a potential licensee shared a common interest for privilege purposes; "As for the common interest elements, Prowess has demonstrated that it shares an identical legal interest with UMB [University of Maryland, Baltimore] and its employees. A patentee and potential exclusive licensee have a common legal interest in seeking and maintaining enforceable patents.")

Case Date Jurisdiction State Cite Checked
2013-05-09 Federal MD B 3/14

Chapter: 20.1102
Case Name: William F. Shea, LLC v. Bonutti Research, Inc., Case No. 2:10-cv-615, 2013 U.S. Dist. LEXIS 48819, at *6-7, *9-10 (S.D. Ohio Apr. 4, 2013)
(holding that a patent owner and its assignee could enter into a common interest agreement; "BRI [patent owner] posits that its interests were closely aligned with Acacia [patent assignee] despite the fact that they exchanged documents in the context of an arms-length negotiation regarding the price Acacia was to pay for certain patent-related assets of BRI. Both BRI and Acacia had an interest in the strength and scope of the patents that were the subject of the negotiations."; "In this case, not only did Acacia and BRI share an interest in the existence of 'strong and enforceable' patents, there were also a number of patents for which Acacia had an interest in either commencing or continuing litigation.")

Case Date Jurisdiction State Cite Checked
2013-04-04 Federal OH B 3/14

Chapter: 20.1102
Case Name: Maxtena, Inc. v. Marks, Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17-18, *29 (D. Md. Mar. 26, 2013)
(finding that a company and the state of Maryland could enjoy the benefits of a common interest agreement, because the state was considering investing in the company; "[T]he Fourth Circuit has never required an attorney's involvement as a prerequisite to a valid common interest agreement.")

Case Date Jurisdiction State Cite Checked
2013-03-26 Federal MD B 3/14

Chapter: 20.1102
Case Name: Citizens for Ceres v. Superior Court, 159 Cal. Rptr. 3d 789, 792, 811 (Cal. Ct. App. 2013)
(holding that the city and private developer share a common interest; "We conclude, however, that the common interest doctrine, which is designed to preserve privileges from waiver by disclosure under some circumstances, does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to approval of the project. This is because, when environmental review is in progress, the interests of the lead agency and a project applicant are fundamentally divergent."; "After approval, by contrast, the agency and applicant have a united interest in defending the project as approved, and privileges are not waived by disclosures between them from that time onward."; "The crucial point in time for our purposes here is project approval, not the commencement of litigation. That point is crucial for the reasons we have stated. The time of commencement of litigation has no significance."; "[W]e conclude that the city and developer have waived the attorney-client privilege and the protection of the attorney-client work product doctrine for all communications they disclosed to each other before the city approved the project."; "As we have already indicated, the situation is different after project approval. Then the agency's and applicant's interests are aligned, assuming the approval has not left any dispute remaining between them. Both are legitimately committed to the same thing at that point --defending the project as approved. Under those circumstances, there is nothing about the agency-applicant relationship that would stand in the way of applying the common interest doctrine, assuming its elements are satisfied with respect to the particular communications for which its protection is claimed.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State CA B 4/14

Chapter: 20.1102
Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)
(holding that the work product doctrine protected a post-accident investigation after a cruise line passenger died in a zip line accident that was operated by an excursion company; also holding that the cruise line and the excursion had a common interest that allowed them to share the work product without waiving that protection (although inexplicably failing to explain that such a common interest is not necessary to avoid waiving work product in that situation; "In addition, it does not matter that the Report was prepared by an employee of Tabyana Tours rather than an employee of NCL [cruise line] because, based upon the Affidavit of Ms. Kilgour, the Tabyana Incident Report was prepared at the request of NCL and/or its legal counsel for NCL to use in anticipated litigation, and thus, in this factual scenario Tabyana Tours, prepared the Incident Report as an agent of NCL. . . . Thus, the report created by NCL's agent, Tabyana Tours, falls squarely into the scope of Rule 26(b)'s work protection and is not subject to disclosure.")

Case Date Jurisdiction State Cite Checked
2009-11-06 Federal FL
Comment:

key case


Chapter: 20.1102
Case Name: Fojtasek v. NCL (Bahamas) Ltd., Case No. 09-20581-CIV-UNGARO/SIMONTON, 2009 U.S. Dist. LEXIS 107478 (S.D. Fla. Nov. 6, 2009)
(holding that the work product doctrine protected a post-accident investigation after a cruise line passenger died in a zip line accident that was operated by an excursion company; also holding that the cruise line and the excursion had a common interest that allowed them to share the work product without waiving that protection (although inexplicably failing to explain that such a common interest is not necessary to avoid waiving work product in that situation; "The Tabyana Incident Report is also protected from disclosure because of the joint defense theory which extends work product protection to documents shared between entities who have a common interest in the outcome of litigation. In this case, there can be little argument that at the time that the Tabyana Incident Report was prepared and provided to NCL, NCL and Tabyana had a common interest in defending any claim related to the incident. Thus, despite Plaintiff's arguments to the contrary, the fact that Tabyana was not ultimately named in this suit, and the fact that NCL has asserted that Tabyana bears full responsibility, does not change their common interest at the time the report was shared with NCL. If the position Plaintiff urges is adopted, then litigants could always obtain joint defense materials that were shared confidentially between aligned potential or actual parties by either dismissing one party from the case, or not naming all of the possible defendants to a particular action. Similarly, the fact that Tabyana Tours arguably cannot now be named as a defendant in this litigation because the statute of limitations has elapsed does not lift the work product protection veil from the Tabyana Incident Report."; "Further, there is no evidence that Tabyana Tours knew at the time that it prepared the Incident Report that it would not be sued in the instant or other litigation related to the incident. . . . Therefore, the undersigned concludes that the Tabyana Incident Report is not subject to disclosure because it was prepared in anticipation of litigation and was provided to NCL by Tabyana as an entity with a common interest in the outcome of the instant litigation.")

Case Date Jurisdiction State Cite Checked
2009-11-06 Federal FL
Comment:

key case


Chapter: 20.1102
Case Name: Warren Distributing Co. v. INBEV USA L.L.C., Civ. No. 07-1053 (RBK), 2008 U.S. Dist. LEXIS 71320 (D.N.J. Sept. 18, 2008)
(holding that a common interest agreement deserved privilege protection; "The fact that a joint defense agreement was signed is not evidence of the conspiracy plaintiffs allege existed. If this were the case courts would routinely order the production of joint defense agreements. In fact, however, plaintiffs have not cited to a single case where a joint defense agreement was held discoverable.")

Case Date Jurisdiction State Cite Checked
2008-09-18 Federal NJ

Chapter: 20.1102
Case Name: Glidden Co. v. Jandernoa, 173 F.R.D. 459, 472-73 (W.D. Mich. 1997)
("The universal rule of law, expressed in a variety of contexts, is that the parent and subsidiary share a community of interest, such that the parent (as well as the subsidiary) is the 'client' for purposes of the attorney-client privilege. See Crabb v. KFC Nat'l Man. Co., 1992 U.S. App. LEXIS 38268, 1992 WL 1321 (6th Cir. 1992) ('The cases clearly hold that a corporate 'client' includes not only the corporation by whom the attorney is employed or retained, but also parent, subsidiary and affiliate corporations.') (quoting United States v. AT&T, 86 F.R.D. 603, 616 (D.D.C. 1979)). Consequently, disclosure of legal advice to a parent or affiliated corporation does not work a waiver of the confidentiality of the document, because of the complete community of interest between parent and subsidiary. Id. at *2. Numerous courts have recognized that, for purposes of the attorney-client privilege, the subsidiary and the parent are joint clients, each of whom has an interest in the privileged communications. See, e.g., Polycast Tech. Corp. v. Uniroyal, Inc., 125 F.R.D. 47, 49 (S.D.N.Y. 1989); Medcom Holding Co. v. Baxter Travenol Lab., 689 F. Supp. 841, 842 (N.D. Ill. 1988). Simply put, a sole shareholder has a right to complete disclosure about the legal affairs of its wholly owned subsidiary.")

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal MI B 6/13

Chapter: 20.1102
Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 247, 247-48, 248, 249, 250 (4th Cir. 1990)
(holding that a parent and subsidiary corporation could enter into a valid common interest agreement although the subsidiary was not a named party -- because the subsidiary was the "real party in interest"; concluding that the valid common interest agreement prevented the subsidiary from unilaterally waiving the attorney-client privilege and protected documents relating to the common interest participants' prosecution of a claim against the Army and defense of the Army's counterclaim; agreeing with the district court that the subsidiary could unilaterally control its own privilege once it had been sold to another company, and that the parent had no control over documents created by the subsidiary after it was sold; assessing a situation described more fully in the district court's opinion (In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207 (E.D. Va. 1990)) in which a government grand jury subpoenaed documents relating to possible fraud in connection with a government contract; explaining a company ["Movant"] objected to the grand jury subpoena on attorney-client privilege and work product grounds; explaining that the district court had divided the subpoenaed documents into three categories: (1) documents created by one of Movant's divisions while it was undertaking the contractual work; (2) documents created by the division after it had become a Subsidiary of Movant; and (3) documents created by Subsidiary after Movant had sold controlling interest in Subsidiary to independent investors; noting that the Subsidiary had advised Movant and the government that it wished to cooperate with the grand jury and to produce the responsive documents; [Although not described fully in the Fourth Circuit opinion, the district court found that: (1) as to the Category 1 documents, generated by the division that was then part of Movant, it was "unclear" whether the Subsidiary gained ownership of any privilege covering those documents when the division became a subsidiary, but that it was unnecessary to resolve "this somewhat metaphysical issue" because Movant "permitted at least some of these documents to remain in the Subsidiary's custody and control" after selling the Subsidiary, and therefore "effectively waived its privilege with respect to these documents" meaning that the now-independent Subsidiary could waive the privilege and work product protections as to those documents (734 F. Supp. at 1213); (2) as to the Category 2 documents, generated by Subsidiary when it was owned by Movant, Movant could not block Subsidiary's waiver of those documents in its possession because the "joint defense privilege" did not give both Movant and Subsidiary veto power over the other's waiver the joint defense doctrine did not cover documents created while Movant and Subsidiary were merely "cooperating to assert [Movant's] claim" against the Army in seeking to recover under the underlying government contract; acknowledging that Subsidiary would have received a portion of whatever amount was ultimately recovered from the Army in connection with that claim, but that "[t]o extend the joint defense privilege to non-parties simply because they are financially interested in the litigation stretches the rationale for the privilege beyond its reach" (734 F. Supp. at 1212); and (3) as to the Group 3 documents, created by the newly-independent Subsidiary, finding that Movant had no control over those documents, and Subsidiary could produce them to the government.]; affirming the district court's analysis as to any document not related to what the Fourth Circuit described as "prosecution of the claim against the Army for an equitable adjustment and those prepared for the defense of the counter-claim" which involved "joint efforts on the part of Movant and Subsidiary"; agreeing with Movant that such "claim-related documents are subject to a joint defense privilege that Subsidiary cannot waive without Movant's consent"; acknowledging that Subsidiary "was not named as party in either the civil claim against the Army or in the Army's counter-claim," but finding that "persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims," and thus the common interest doctrine applied to Movant's and Subsidiary's "joint prosecution of a claim against the Army, as well as in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; holding that the district court's ruling was in error because it was "apparently based on the notion that the joint defense privilege is limited to codefendants" [although the district court's opinion instead was based on the fact that Subsidiary was not a party to any litigation, not on the fact that the Subsidiary was not a co-defendant]; in analyzing the Category 1 documents, rejecting the government's argument that the joint defense privilege could not apply because the creating entity was then a division of Movant rather than a separate entity; holding that "[t]he rationale underlying the joint defense privilege focuses not on when documents were generated, but on the circumstances surrounding the disclosure of privileged documents to a jointly interested third party"; explaining that here the disclosure "occurred on the day Movant incorporated Subsidiary as a separate entity," and was made to allow Subsidiary "to continue to participate in the ongoing litigation"; ultimately holding that "all documents that relate to the prosecution of the claim against the Army or to the defense of the Army's counterclaim, and which are subject to the attorney-client or work-product privilege, are subject to a joint defense privilege that Subsidiary may not waive unilaterally"; reversing the district court's opinion to that extent)

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 20.1103
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "Assuming without finding that Plaintiffs and Amazon share a common legal interest, Plaintiffs have made no showing that Aziz's communications with Amazon were 'made in formulating a common legal strategy [ ] and that the parties understood that the communication would be in furtherance of the shared legal interest.'. . . Rather, the circumstances of this case -- namely, that Aziz performed many 'investigations' as part of his job and Rubie's had a 'Department' dedicated to this kind of activity -- support the conclusion that Aziz's communications with Amazon were part and parcel of both Rubie's and Aziz's activities in protecting the integrity of the brand, rather than for the purpose of 'formulating a common legal strategy' with respect to any specific litigation. Accordingly, the common interest doctrine does not apply in these circumstances.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY

Chapter: 20.1103
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)


Case Date Jurisdiction State Cite Checked
2018-09-28

Chapter: 20.1103
Case Name: Monco v. Zoltek Corp., No. 17 C 6882, 2018 U.S. Dist. LEXIS 117940 (N.D. Ill. July 16, 2018)
(analyzing the common interest doctrine application and work product issues in a law firm's lawsuit to collect its fees from a former client; focusing on communications between defendant's founder and another company with whom the founder negotiated a transfer of the patent to the founder; "Here, there is plainly not the required shared legal interest in an ongoing enterprise. All we know from Zoltek Corporation is that one party -- Toray Industries [Other company] -- is transferring a patent to another party -- Mr. Rumy [Defendant's founder]. Zoltek Corporation tells us that Toray Industries is transferring that patent because it doesn't want to be involved in the ongoing litigation anymore. As such, Toray Industries does not share the required common legal interest with Mr. Rumy; quite the contrary: Toray Industries is abandoning a legal interest and transferring it to Mr. Rumy. Mr. Rumy says that he then would pursue the litigation in his 'individual capacity.'. . . By definition, that's not a 'joint venture,' regardless of Zoltek Corporation's tendentious attempt to describe it as such."; "Toray Industries is selling the patent and exiting the litigation; Mr. Rumy is buying the patent rights and taking over the litigation, as he says, in his 'individual capacity.' Toray and Zoltek Corporation are out of the case, and Mr. Rumy is in. Thus, it is a contradiction in terms to say that this evidences a 'common legal interest' as the cases use that term.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal IL

Chapter: 20.1103
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "There must be 'an on-going and joint effort to set up a common defense strategy' for the common interest exception to apply. . . . '[A] shared desire to see the same outcome in a legal matter is insufficient to bring a communication between two parties within this exception.'. . . 'Instead, the parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement -- whether written or unwritten.'")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA
Comment:

key case


Chapter: 20.1103
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
(in a patent case, explaining that the common interest doctrine can apply even in a transactional context, but rejecting a common interest doctrine argument because one of the participants was not represented by a lawyer; "Plaintiff argues that the common interest doctrine cannot be asserted because AAT did not have separate counsel. There is support for the position that all parties must be represented by counsel for the common interest exception to apply, distinguishing a joint-defense/co-client situation (i.e., two parties who hire the same attorney), from a common interest arrangement (i.e. two parties with separate counsel whose legal interests are aligned)."; "The requirement that each party to a common interest arrangement have an attorney also comports with the intent behind the common interest privilege, to permit attorneys to develop a joint legal strategy; the development of legal strategy requires the participation of lawyers."; "While this Court was not able to locate any Ninth Circuit precedent that explicitly requires both parties be represented by separate counsel, nor was there any precedent that extended the benefits of the common interest exception to the attorney client privilege when the disclosure at issue involved an unrepresented third-party employed by a separate entity."; "Defendants have not satisfied their burden to show that the common interest exception is available to protect the attachment at issue. Without clearing this first hurdle to invoke the common interest exception, the Court need not reach the remaining arguments.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA
Comment:

key case


Chapter: 20.1103
Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. Bankr. March 5, 2018)
(holding that the common interest doctrine did not protect communications between a Creditors Committee (represented by Hunton & Williams) and the bankrupt company, who settled with a Creditors Committee and then sued the defendant; "The common interest privilege can apply only if the parties share a 'substantially similar legal interest.'")

Case Date Jurisdiction State Cite Checked
2018-03-05 Federal DE

Chapter: 20.1103
Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. March 5, 2018)
(holding that the common interest doctrine did not protect communications between a Creditors Committee (represented by Hunton & Williams) and the bankrupt company, who settled with a Creditors Committee and then sued the defendant; "There is a Common Interest Agreement between the Trustee and FTB, the existence of which does not create the common interest privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-05 Federal DE

Chapter: 20.1103
Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. Bankr. March 5, 2018)
(holding that the common interest doctrine did not protect communications between a Creditors Committee (represented by Hunton & Williams) and the bankrupt company, who settled with a Creditors Committee and then sued the defendant; "The Defendants argue that after the settlement with the Trustee, FTB's interest in the adversary proceeding is financial or commercial, not legal. FTB is not a party or potential party in the litigation and any ruling by the Court will have no legal repercussions on FTB. Instead, 'FTB has nothing more than a rooting interest in the outcome of the Trustee's case.'"; "That ruling is that FTB shares a financial interest in common with the Trustee. It does not share a common legal interest with the Trustee. The Court reaches its conclusion from case law and a common sense approach to the issue. The Court can certainly understand why the Trustee and H&W oppose the Motion. They do not want to produce the documents to the Defendants. But they are wrong."; "It remains clear to the Court that the common interest which the Trustee and FTB share is financial, not legal. FTB has no legal exposure to the Trustee or Defendants. Instead, FTB sits on the sidelines and hopes that the Trustee, with H&W's help, will achieve success, collect on a judgment, and pay FTB its share of the proceeds. Surely that is a financial interest, not a legal one."; "There is added texture and importance to Defendants' effort to obtain the 191 withheld documents. FTB was at one time the 'bad guy,' the target of the Trustee's and H&W's lawsuit. The complaint which H&W drafted named FTB as the sole defendant and the cause of Debtors' downfall. FTB was accused in the draft complaint of destroying Debtors' going concern value and causing in excess of $5 million of WARN Act liability. Defendants want to better understand what happened to flip the case from FTB to Defendants as being responsible for Debtors' misfortune. The withheld documents may or may not explain what happened, but the Defendants must know.")

Case Date Jurisdiction State Cite Checked
2018-03-05 Federal DE

Chapter: 20.1103
Case Name: Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564 (D. Colo. Feb. 12, 2018)
("The common interest doctrine does not protect the five redactions at issue because Defendant Cultural Care, Inc., the holder of the attorney-client privilege, disclosed the privileged information to the Alliance, which does not have an identical legal interest. Defendants' argument, that '[w]ith respect to this litigation, the Alliance and Defendants have an identical interest -- to prevail,' an argument the Magistrate Judge adopted, is inaccurate. . . . For Defendants to 'prevail' in this action is for them to escape liability for the underpayment of au pairs under the FLSA or state minimum wage laws. The Alliance does not, and cannot have, that interest because the Alliance cannot be held liable for underpayments to au pairs. The Alliance is differently -- situated to Plaintiffs' claims than Defendants are, for the Alliance is not an employer of au pairs and did not pay au pairs. In short, the Alliance has no interest in escaping liability, unlike Defendants. . . . Defendants thus have failed to carry their burden to show an identical legal interest with the Alliance. The common-interest doctrine does not protect the attorney-client privileged information Defendant Cultural Care, Inc. divulged to third party the Alliance."; "The Magistrate Judge's conclusion that Defendants and the Alliance have an identical legal interest in 'retaining] the current method of stipends' is contrary to law. . . . That is not an identical legal interest; it is a business or commercial interest. . . . The Magistrate Judge also erred in stating that 'the Alliance could be named . . . an active aider and abettor' or 'a potential defendant' in this action. . . . As the Court has discussed at length, the Alliance cannot be named a defendant to Plaintiffs' claims because the Alliance is not responsible for paying au pairs.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CO

Chapter: 20.1103
Case Name: Acceleration Bay LLC v. Activision Blizzard, Inc., Civ. A. No. 16-453-RGA, 2018 U.S. Dist. LEXIS 21506 (D. Del. Feb. 9, 2018)
(holding that the work product doctrine did not protect communications to and from a litigation finance company and its lawyer Reed Smith, and that the litigant and its litigation funder did not share a common interest sufficient to avoid waiving privilege protection; apply the "AID" standard for work product protection; "Plaintiff argues that '[l]itigation funders provide funds 'for the sake of securing, advancing, or supplying legal representation,' and thus have a common legal interest with the plaintiffs they fund.'. . . Therefore, argues Plaintiff, because 'Hamilton Capital [was] [P]laintiff s litigation funder with a financial interest in [Plaintiff's] successful enforcement of the patents,' Plaintiff and Hamilton Capital had a common legal interest when the communications were exchanged. . . . Plaintiff also cites an unpublished Court of Chancery opinion, Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7 (Del. Ch. Feb. 24, 2015), for the proposition that 'there is a community of legal interest between a patent owner and its litigation funder.'. . . Carlyle is about work product privilege, not common interest attorney-client privilege. 2015 Del. Ch. LEXIS 42, 2015 WL 778846, at *7."; "However, as explained by the Special Master, 'even accepting Plaintiff's representation' of the confidential relationship between Plaintiff's counsel and Hamilton Capital's counsel, 'it [does not] appear that there was any written agreement at [the time of the communications] to have a legally 'common interest' in whatever was provided by Plaintiff.'. . . Furthermore, the Special Master explained that the 'documents were provided before any agreement was reached between Plaintiff and Hamilton Capital, and before any litigation was filed.'. . . Thus, Plaintiff has not shown that Plaintiff and Hamilton Capital possessed identical legal interests in the patents-in suit or were otherwise 'allied in a common legal cause' at the time of the communications. . . . Because Plaintiff has not carried its burden of establishing a common legal interest, the privilege does not apply, and Plaintiff's objection falls short.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal DE
Comment:

key case


Chapter: 20.1103
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Proc. No. 08-01789 (SMB), Adv. Proc. No. 10-04292 (SMB), 2017 Bankr. LEXIS 3638 (S.D.N.Y. Oct. 17, 2017)
(in a case arising from Bernie Madoff's fraud, holding that drafts of Madoff's declaration deserved work product protection; "Chaitman [Lawyer for Madoff's sister-in-law's husband] suggests that Roman [Bernie Madoff's sister-in-law's husband] and Madoff share a common interest 'in their search for the truth.'. . . Given Roman's and Chaitman's other clients' contention that Madoff is a liar who defrauded them . . . the assertion is absurd.")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY

Chapter: 20.1103
Case Name: Waymo LLC v. Uber Technologies, Inc., 2017-2235, 2017-2253, 2017 U.S. App. LEXIS 17668 (Fed. Cir. Sept. 13, 2017)
(denying a mandamus petition based on a common interest privilege assertion for a communications between Uber and Ottomotto (a company founded by a former Waymo employee who allegedly stole Google's secrets and brought them to Uber); "As to the first requirement of the common interest doctrine, Mr. Levandowski does not take the position that his communications with Stroz were 'privilege[d] in the first place.'"; "'We note that neither Stroz [Lawyer hired by Uber (a company founded by former Waymo employee Levandowski to investigate other Ottomotto employees previously employed by Waymo)], nor Uber's counsel, nor Ottomotto's counsel represent Mr. Levandowski.'"; "As to the second requirement of the common interest doctrine, the record contradicts Mr. Levandowski's assertions that the District Court committed both legal and factual error. Mr. Levandowski argues that the District Court committed legal error by 'adopt[ing] a blanket rule that parties with 'separate counsel on opposite sides of a proposed transaction' do not share a common legal interest sufficient to protect against waiver of the attorney-client privilege.'"; "[T]he Magistrate Judge found persuasive the term sheet between Uber and Ottomotto and the Stroz Report . . . and determined that these documents demonstrated that Uber's interests 'were not aligned' with those of Mr. Levandowski."; "Uber and Ottomotto, but not Mr. Levandowski, hired Stroz to investigate various issues, including whether Mr. Levandowski improperly retained confidential information from Waymo . . . Mr. Levandowski did not hire or enter into any other formal arrangement with Stroz."; "These facts support the District Court's conclusion that Uber's interests were adverse to Mr. Levandowski's because he was the subject of an investigation ordered by two parties on opposite sides of a proposed transaction. These undisputed facts are sufficient to uphold the District Court's conclusion that Mr. Levandowski did not share a common interest with Uber. We thus decline to find error in the District Court's factual findings or legal conclusions.")

Case Date Jurisdiction State Cite Checked
2017-09-13 Federal

Chapter: 20.1103
Case Name: Violetta v. Steven Bros. Sports Mgmt., LLC, Case No. 16-1193-JTM-GEB, 2017 U.S. Dist. LEXIS 135861 (D. Kansas Aug. 24, 2017)
(finding that the common interest doctrine applied only if the participants were working on a common legal strategy, not if one participant merely provided facts to other participants; "The relevant question with which the Court reviews the communications is this: were Defendants and their third-party insurers communicating to formulate a common legal strategy, which would entitle the third-party communications to privilege? Upon review of the documents, it appears Ms. Waldon, on behalf of the insurance company, was simply providing information to Defendants regarding the identity of the administrator and plan documents, such as benefits summaries and plan booklets -- not working with her to craft a common legal strategy.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal KS
Comment:

key case


Chapter: 20.1103
Case Name: United States v. Krug, Dkt. No. 16-4136-cr, 2017 U.S. App. LEXIS 15643 (2nd Cir. App. Aug. 18, 2017)
(holding that the common interest doctrine did not protect communications unrelated to the request for or provision of legal advice; "Appeal from the December 10, 2016 order of the United States District Court for the Western District of New York (Skretny, J.) precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basis of the common-interest rule of attorney-client privilege. The excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. While expressing no view as to whether all such circumstances would invoke the privilege, we find nothing in the circumstances here to support the application of the privilege, and accordingly reverse the district court's order of exclusion."; "[W]e have stated that it is not 'necessary for the attorney representing the communicating party to be present when the communication is made to the other party's attorney' under a common-interest agreement. . . . Ultimately, "[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.'"; "The communications at issue in this case did not serve the interests that justify the privilege. The communications occurred outside the presence of any lawyer. Notwithstanding that the lawyers for the defendants were nearby and had recently been in communication with their clients, the excluded statements were not made for the purpose of obtaining legal advice from a lawyer, nor did the excluded statements share among defendants advice given by a lawyer, nor did the excluded statements seek to facilitate a communication with a lawyer. Here, the hallway discussion consisted of one member of the JDA (Wendel) conveying his independent, non-legal research to another member of the JDA (Krug) while noting he had sent the same research to his attorney. No legal advice was mentioned, much less shared or otherwise conveyed, among the co-defendants. The mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege. We know of no precedent applying the attorney-client privilege on such facts and we find no circumstances present here that could justify extending the attorney-client privilege to these communications.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal

Chapter: 20.1103
Case Name: Grimsley v. The Manitowoc Co., Inc., Civ. No. 1:15-CV-1275, 2017 U.S. Dist. LEXIS 108500 (M.D. Pa. July 13, 2017)
(finding that there was no common interest between an insured and a worker's compensation insurance carrier; "Here, we reject Grove's broad assertion that, by virtue of its purported insured-insurer relationship with Sentry, Grove's attorneys 'jointly represent[] or act[] for the common interest of" both Sentry and Grove, and that Grove and its insurer jointly hold attorney-client privilege 'as to any third-part[ies].'. . . We initially note that it is unclear whether Grove relies on the 'common interest' or 'co-client' doctrine to assert attorney-client privilege, as citations in its briefing appear to conflate the doctrines. (See id.). In any event, Grove provides little information, beyond asserting that it is insured by Sentry, as to how either doctrine applies in this case. For instance, it is not apparent whether Sentry and Grove are represented by separate counsel, a requirement for application of the common interest doctrine, or by the same counsel, which is indicative of the co-client doctrine."; "Moreover, as to the common interest doctrine, we note that Sentry is not a party to the instant action and has not denied workers' compensation coverage with respect to the Incident. Consequently, Grove has not shown with any particularity how Sentry is involved in similar or related legal proceedings so as to share common legal interests with Grove in mounting a defense in this case. . . . Grove has also not shown how it is Sentry's co-client, as there is no indication that Sentry is paying for Grove's counsel, and Sentry's only apparent interest in this litigation is to generally minimize its insured's exposure to liability.")

Case Date Jurisdiction State Cite Checked
2017-07-13 Federal PA

Chapter: 20.1103
Case Name: Swyear v. Fare Foods Corp., Case No. 3:16-cv-01214-SMY-RJD, 2017 U.S. Dist. LEXIS 107939 (S.D. Ill. July 12, 2017)
(holding that a Title VII plaintiff forfeited privilege protection for communications with her lawyer, because she brought her mother with her to the meeting; claiming that the mother was not a joint client and did not share a common interest with the daughter; inexplicably not addressing possible work product protection; "[I]t appears that Swyear's mother was present during the initial consultation to provide emotional or moral support. While the Court is not unsympathetic to Swyear's position, the presence of her mother during the consultation waived the attorney client privilege. Courts have repeatedly noted that the scope of the attorney client privilege 'should be strictly confined within the narrowest possible limits,'. . . and the waiver exception for individuals assisting an attorney is inapplicable to this situation."; "Although Swyear's mother may have had prior business dealings with the Defendant, Swyear and her mother did not share a common legal interest. Swyear is pursuing a Title VII wrongful termination and sexual harassment lawsuit; there is no evidence that Swyear's mother sought legal services for such claims.")

Case Date Jurisdiction State Cite Checked
2017-07-12 Federal IL
Comment:

key case


Chapter: 20.1103
Case Name: Swyear v. Fare Foods Corp., Case No. 3:16-cv-01214-SMY-RJD, 2017 U.S. Dist. LEXIS 107939 (S.D. Ill. July 12, 2017)
October 4, 2017 (PRIVILEGE PONT)

"Does a Client Risk Privilege Protection by Bringing Her Mother to a Lawyer Meeting?"

Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege protection.

In Swyear v. Fare Foods Corp., Case No. 3:16-cv-01214-SMY-RJD, 2017 U.S. Dist. LEXIS 107939 (S.D. Ill. July 12, 2017), a Title VII plaintiff brought her mother to her initial lawyer consultation. The court bluntly held that "the presence of her mother during the consultation waived the attorney client privilege." Id. at *5. The court also rejected two arguments plaintiff advanced to avoid such a waiver, holding (1) that the mother was not a joint client, because "there is no evidence that [plaintiff's] mother sought legal services"; and (2) that "[plaintiff] and her mother did not share a common interest." Id.

Perhaps because plaintiff's lawyer did not raise it, the court did not address possible work product protection for plaintiff's communications with her new lawyer. Because the work product doctrine is not based on confidentiality and is much more robust than the privilege, friendly third parties' presence normally does not abort that separate protection.

Case Date Jurisdiction State Cite Checked
2017-07-12 Federal IL
Comment:

key case


Chapter: 20.1103
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 U.S. Dist. LEXIS 96037 (N.D. Cal. June 21, 2017)
(holding that the privilege did not protect the investigation report of a forensic firm hired by acquiring company Uber and acquired company Ottomotto to investigate whether Ottomotto's CEO had stolen information from Google; also holding that they did not share a common interest or have a joint representation; "[T]he Court finds that there was no joint retention: Uber's attorneys did not hire Stroz on behalf of Levandowski and Uber; they hired Stroz to investigate Levandowski. Indeed, even as of the signing of the Put Call Agreement, counsel for Uber and Otto directed Stroz to modify its investigation protocol to clarify that they -- and not Levandowski's attorney -- were directing the Stroz investigation."; "Levandowski's emphasis on his attorney's representation to Stroz on March 14, 2016 and March 21, 2016 that he shared a common legal interest with Otto confirms the Court's finding of a lack of a joint defense agreement among Uber, Otto and Levandowski. At that time Levandowski and Otto shared an interest in having Uber acquire Otto for millions of dollars and they shared a common interest in at least having Uber sign the Put Call Agreement so that Uber would be obligated to indemnify Levandowski and Otto in the event Waymo sued them. What they did not share was any common legal interest with Uber, the party on the other side of the proposed transaction. It is thus unsurprising that Levandowski's attorney did not state that his client shared a legal interest with Uber."; "Levandowski has never explained why he would need to meet alone with Stroz -- an agent for Uber -- in order to obtain legal advice from his attorney on litigation risk. He would not. He needed to give an interview to Stroz, unencumbered by legal counsel, because Uber insisted on such a process as part of its pre-signing due diligence and to create a record that would govern indemnification rights should the parties execute the Put Call Agreement."; "The expansion of the attorney-client privilege Levandowski seeks here would violate the rule that the privilege should be construed 'narrowly to serve its purposes.' In re Pacific Pictures Corp., 679 F.3d at 1126. As the Term Sheet demonstrates, Levandowski disclosed his devices and gave the Stroz interview to enable Uber to decide whether it wanted to pay Otto and Levandowski millions of dollars. The Stroz investigation also created an evidentiary record that would determine whether Uber is required to indemnify Levandowski should Uber, following its pre-signing due diligence, decide to sign the Put Call Agreement. This indemnification right is likewise worth millions of dollars. To hold that Levandowski did not waive the attorney-client privilege when it provided this information to Uber 'does little, if anything, to serve the public good underpinning the attorney-client privilege.'"; approved by the district court on June 27, 2017)

Case Date Jurisdiction State Cite Checked
2017-06-21 Federal CA

Chapter: 20.1103
Case Name: AP Atlantic, Inc. v. Crescent Univ. City Venture, LLC, 15 CVS 14745 (Master File), 16 CVS 14844 (Related Case), 2017 NCBC LEXIS 49 (N.C. Super. June 6, 2017)
(finding that the common interest agreement did not apply to communications between a property owner and a contractor; "To extend the attorney-client privilege between or among the attorney, the attorney's client, and a third party, the client and third party must '(1) share a common [legal] interest; (2) agree to exchange information for the purpose of facilitating legal representation of the parties; and (3) the information must otherwise be confidential.'. . . In such circumstances, the privilege 'serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.'"; "[B]ut only if the parties have a common interest about a legal matter -- not a common business interest 'that may be impacted by litigation involving one of the parties,' id. (quoting SCR-Tech LLC v. Evonik Energy Servs. LLC, 2013 NCBC LEXIS 38, at *16 (N.C. Super. Ct. Aug. 13, 2013)) (holding that the defendants and a third-party 'shared a common business interest as opposed to the common legal interest' where the third-party was not a party to the litigation and the litigation was not materially related to the defendants' transaction with the third-party allegedly giving rise to the common legal interest)."; "In addition, Crescent has not shown an existing common legal interest between Crescent, the owner of the property at issue, and Summit, the contractor Crescent hired to repair trusses at the property, sufficient to invoke the common interest doctrine. Although Crescent bases the alleged common legal interest here on 'the indemnity and assumption of defense obligations' that Crescent and Summit 'reasonably anticipated would fall to Crescent,' Crescent has not argued that such obligations actually fell to Crescent, and it is undisputed that Summit never received a demand relating to its repairs and is not a party to this litigation.")

Case Date Jurisdiction State Cite Checked
2017-06-06 State NC

Chapter: 20.1103
Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
August 2, 2017 (PRIVILEGE POINT)

"Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer"

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or communications protected by the attorney-client privilege, the work product doctrine, or both.

In RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232- & 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017), plaintiff RKF sued Tropicana in 2014, alleging that Tropicana wrongfully terminated an exclusive agency contract. In 2015, Penn Gambling acquired Tropicana. RKF then sought discovery of "information about [its] lawsuits" that Tropicana disclosed to Penn Gaming before the acquisition. Id. at *5. The court found that Tropicana's due diligence disclosures waived privilege protection but not work product protection. In finding a privilege waiver, the court rejected Tropicana's argument that it shared a "common interest" with acquirer Penn Gaming -- noting that the "majority of courts have rejected application of the [common interest] doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort." Id. at *10. The court concluded that "Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition." Id. at *14. In contrast, the court found that Tropicana did not waive its work product protection by disclosing work product to Penn Gaming during the due diligence process. The court correctly noted that unlike the fragile privilege protection, work product protection "is not waived if the disclosing party has a reasonable basis to believe that the recipient will keep the disclosed materials confidential and not reveal them to the disclosing party's adversary." Id. at *17. The court concluded that Penn Gaming had a vital interest in preserving as confidential Tropicana's disclosure about RKF's suit because Penn Gaming "would, directly or indirectly, assume Tropicana's potential liability if the merger went through." Id. at *18.

Other courts have reached the identical two-part conclusion in addressing pre-acquisition due diligence disclosures – which dramatically highlights the contrast between the fragile privilege protection and the robust work product protection.

Case Date Jurisdiction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 20.1103
Case Name: In re Hypnotic Taxi LLC v. Bombshell Taxi LLC, Ch. 7 Case No. 15-43300 (CEC), Adv. Pro. No. 15-01185 (CEC), 2017 Bankr. LEXIS 995 (E.D.N.Y. April 10, 2017)
(holding that the settlor of a trusts had given away all ownership of the trusts, and therefore did not have a common interest with the trusts, even though the settlor wanted to protect trust assets for his children and the parents; "In order to invoke the common interest doctrine, the interest shared by the parties, among whom the privileged information passed, must be legal; the mere existence of a common business strategy or shared commercial interest, even if combined with the anticipation of or concern about litigation, is not enough to invoke the doctrine. . . . Such a legal interest must also be identical, not merely similar. . . . Furthermore, the shared desire to succeed in a legal action does not meet the requirement of the doctrine."; "For example, courts have found a common legal interest sufficient to invoke the common interest doctrine between an agent for a syndicated loan group and the members of the group, in an action against the borrower brought by the agent on behalf of the lending group . . . and between an assignor and assignee of trademark rights, in an action involving a challenge to the assignee's right to use the trademark and a challenge to the validity of the assignment agreement, where the non-party assignor had a contractual duty to indemnify the assignee."; "On the other hand, an asserted common legal interest was found insufficient to invoke the common interest doctrine between two wholly owned subsidiaries of a common parent, even where one subsidiary had financed the plaintiff's purchase of an aircraft from the other, and the finance and purchase agreements contained cross-defaults."; "[T]he Trusts assert that the common legal interest they share with Freidman is 'the protection of the assets validly vested in the Non-Party Trusts for the benefit of Freidman's heirs and/or parents.'. . . However, the Trusts have not identified any legal interest Freidman has in protecting the property they hold. Although Freidman is the settlor of the Trusts, and transferred his interests in the Real Estate Entities to the Trusts, no showing has been made that Freidman retains any interest in the Trusts or in Trust property. . . . It has not been shown that Freidman is a beneficiary of the Trusts, a trustee of the Trusts, holds a remainder interest in any property held by the Trusts, possesses the power to revoke or amend the Trusts, or retains any interest whatsoever in the property conveyed to the Trusts. Indeed, the evidentiary record shows the contrary: by letters dated March 1, 2016, offered in evidence by Citibank at the hearing as Exhibit HH, Freidman resigned as protector of the Trusts, and was removed as a discretionary beneficiary of the Trusts."; "As there has not been a showing that Freidman holds a legal or beneficial interest in the property of the Trusts, it appears that Freidman shares only a personal or business interest with the Trusts, i.e. the desire for 'the protection of the assets [held by the] Trusts for the benefit of Freidman's heirs and/or parents.'")

Case Date Jurisdiction State Cite Checked
2017-04-10 Federal NY
Comment:

key case


Chapter: 20.1103
Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
(addressing the waiver implications of a witness reporting to the government that other witnesses committed perjury three years earlier; holding that the witness did not have a common interest with the government, but that the government did not waive its work product protection when disclosing work product to the witness; "As this recitation of objectives makes clear, the Government and Dr. George ["an environmental consultant who worked for Defendants"] each had distinct objectives when they exchanged information relevant to this suit."; "In light of these distinct objectives, the Court concludes the Government and Dr. George lacked a common interest sufficient to support application of the common-interest doctrine. The mere fact that Dr. George and the Government may have shared an interest 'in working to uncover the truth of the matter' does not mean that they shared a common interest sufficient to extend the bounds of attorney-client or work-product privilege. For the common-interest doctrine to apply, represented parties must share a corresponding interest, not merely the need 'for a full and accurate understanding of the facts surrounding various incidents.'. . . The Government has not asserted, nor can the Court conceive of, any interest it has that might correspond to an interest of Dr. George. Therefore, the Court rejects the Government's assertion that the communications between Dr. George and the Filter Team are privileged under the common-interest doctrine.")

Case Date Jurisdiction State Cite Checked
2017-03-27 Federal IA

Chapter: 20.1103
Case Name: Behunin v. The Superior Court of L.A. County, B272225, 2017 Cal. App. 227 (Cal. App. March 14, 2017)
(finding that the privilege did not protect communications to and from an outside PR agency hired by plaintiff's lawyer; "The common interest doctrine applies where the individuals involved in a communication have common interests such that disclosures between them are reasonably necessary to accomplish the purposes for which they are consulting counsel."; "Behunin [Plaintiff] and Levick [Public relations agency]do not have a common interest "'in securing legal advice related to the same [shared] matter.'. . . There is no evidence, however, that Levick sought legal advice from Steiner or that there was an attorney-client relationship between Steiner and Levick. To the contrary, Behunin stated in his declaration that Steiner hired Levick on behalf of Behunin without knowing anything about the content of the website Levick was to create. Although Levick, as a paid consultant, may have wanted its public relations campaign to succeed, that is not the kind of common interest contemplated by sections 912 and 952.")

Case Date Jurisdiction State Cite Checked
2017-03-14 Federal CA

Chapter: 20.1103
Case Name: United States v. Napout, 15 CR 252 (S-1) (PKC) (RML), 2017 U.S. Dist. LEXIS 34759 (E.D.N.Y. March 10, 2017)
(finding the common interest doctrine inapplicable; "Turning to the instant case, defendant has cited no case law, nor has the court's research uncovered any, recognizing a valid common interest agreement under circumstances similar to those here. With respect to the parties' interests, it is difficult to reconcile Napout's interest as a target of the government's investigation with CONMEBOL's opposing interest purported victim of the crimes alleged in the indictment. That the parties apparently did not recognize this distinction during the relevant time period does not alter the analysis."; "Furthermore, the extensive testimony at the hearing clearly establishes that the purpose of the agreement was to allow Napout to 'run everything by' his defense attorneys in an effort to shield himself from criminal liability from the government's ongoing investigation. As Pappalardo made clear at the hearing, he and Kendall entered into the common interest agreement because he 'did not want [Napout] in his official capacity as president of CONMEBOL to further implicate himself.'. . . However, defendant has offered no persuasive evidence that this arrangement furthered any cognizable legal interest of CONMEBOL. Rather, the record before me describes an arrangement whereby information would flow in only one direction -- from CONMEBOL to Napout -- and only for Napout's benefit. It is significant that Napout, acting in his individual capacity, apparently authorized both parties to enter into the common interest agreement and, as a former manager, now seeks to constrain the entity's exercise of control over corporate communications. See Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 349, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985) ('Displaced managers may not assert the privilege over the wishes of current managers, even as to statements that the former might have made to counsel concerning matters within the scope of their corporate duties.') In sum, I know of no precedent or principle supporting defendant's argument.")

Case Date Jurisdiction State Cite Checked
2017-03-10 Federal NY

Chapter: 20.1103
Case Name: 59 South 4th LLC v. A-Top Ins. Brokerage, Inc., 650979/2015, 2017 N.Y. Misc. LEXIS 107 (N.Y. Sup. Ct. Jan. 10, 2017)
(finding that the common interest agreement was ineffective to prevent a waiver of privilege protection for communications between plaintiff building owner and his general contractor, because the general contractor's insurance company had assigned all of its rights to the plaintiff owner and therefore could not anticipate being a litigation party; "In the instant action, defendants' motion to compel plaintiff to produce the documents withheld on the basis of privilege under the common interest doctrine is granted as the court finds that such documents were improperly withheld. The Court of Appeals has made clear that under the common interest doctrine, disclosure of attorney-client communications which Were disclosed to a third party will only be privileged if the communications were between 'codefendants, coplaintiffs or persons who reasonably anticipate that they will become colitigants....' Ambac. Assur. Corp., 27 N.Y.3d at 628. Here, it is undisputed that K-Square is not a coplaintiff of 59 South. Additionally, it is undisputed that K-Square cannot reasonably anticipate that it will become a coplaintiff of 59 South as K-Square has 'absolutely and unconditionally' assigned to 59 South all of K-Square's claims relating to insurance, including K-Square's claims against the defendants herein. Thus, as K-Square does not and cannot reasonably anticipate that it will become plaintiff's colitigant, the communications between 59 South and K-Square, including those between counsel for said parties, are not protected as privileged under the interest doctrine."; "To the extent plaintiff asserts that the common interest doctrine applies to the communications at issue because the requirement set forth by the Court of Appeals in Ambac [Ambac. Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623, 36 N.Y.S.3d 838, 57 N.E.3d 30 (2016)]. Assur. Corp. that there be 'pending or anticipated litigation' has been met based on the fact that the instant litigation is pending, such assertion is without merit. The standard for applying the common interest doctrine is not whether there is a litigation pending but rather whether the communications that are being withheld were between parties who are capable of mounting a common claim or defense in a pending or anticipated litigation. As K-Square is not capable of mounting a common claim with 59 South against defendants, the common interest doctrine does not apply to any communications between 59 South and K-Square, including those between counsel for said parties.")

Case Date Jurisdiction State Cite Checked
2017-01-10 Federal NY
Comment:

key case


Chapter: 20.1103
Case Name: Citibank, N.A. v. Bombshell Taxi LLC (In re Hypnotic Taxi LLC), 566 B.R. 305 (Bankr. E.D.N.Y. 2017)
June 14, 2017 (PRIVILEGE POINT)

"What Type of 'Common Interest' Satisfies the Common Interest Doctrine?'"

Some lawyers incorrectly assume they can contractually assure that disclosing privileged communications to third parties does not waive the privilege – by entering into a "common interest" agreement. But nearly every month some courts reject the effectiveness of such agreements, by which time the participants will already have waived their privilege protection.

In Citibank, N.A. v. Bombshell Taxi LLC (In re Hypnotic Taxi LLC), 566 B.R. 305 (Bankr. E.D.N.Y. 2017), a settlor of several trusts claimed that he shared a common interest with the trusts in resisting defendant's efforts to enforce a judgment against him. But the court rejected his common interest assertion. The court acknowledged decisions upholding common interest agreements' effectiveness in the contexts of "an agent for a syndicated loan group and the members of the group," and "an assignor and assignee of trademark rights." Id. at 315. But because the settlor had transferred all of the pertinent assets to the trusts without retaining any interest in them, the court found that he lacked a common interest with the trusts. Instead, the settlor "shares only a personal or business interest with the Trusts, i.e. the desire for 'the protection of the assets [held by the] Trusts for the benefit of [the settlor's] heirs and/or parents.'" Id. at 317 (first alteration in original) (internal citation omitted). In other words, his desire to protect his children's and his parent's assets was not a sufficiently common legal interest to avoid waiving the privilege when he disclosed privileged communications to the trusts.

Lawyers must always remember the difficulty of successfully relying on common interest agreements.

Case Date Jurisdiction State Cite Checked
2017-01-01 Federal NY
Comment:

key case


Chapter: 20.1103
Case Name: Obeid v. La Mack, 14 Civ. 6498 (LTS) (HBP), 2016 U.S. Dist. LEXIS 170826 (S.D.N.Y. Dec. 9, 2016)
(holding that an investor in plaintiff's real estate project was outside privilege protection, and could not be a common interest participant; in contrast, holding that disclosing work product to the investor did not waive that protection; "[T]here is no attorney-client relationship between plaintiff and Schmidt. Plaintiff describes Schmidt as the 'largest individual equity investor in the Miami Project'. . . and there is no contention that Schmidt is a lawyer, litigation consultant or agent of plaintiff's lawyers. Thus, the Disputed Documents cannot be privileged as a communication between a client and an attorney."; "The common interest rule does not apply here. First, it is debatable whether plaintiff and Schmidt share a common legal interest. Although plaintiff and Schmidt undoubtedly share an interest in recovering from the Individual Defendants for their alleged misconduct, it is not clear whether plaintiff and Schmidt had formed a coordinated legal strategy."; "More importantly, it does not seem plaintiff's communications with Schmidt were for the purpose of developing a common legal strategy. Although plaintiff claims to have sought 'Schmidt's opinion of and, in some cases, personal involvement in,' litigation strategy . . . , he sought it because Schmidt is an 'investor with an interest in seeing that the case is successful'. . . Moreover, plaintiff admits that his precise reason in generating the Disputed Documents was because the litigation materially affects Schmidt's financial interests."; "In determining whether communications were made in the course of formulating a common legal strategy, courts have examined whether attorneys were active in such communications. . . . Neither plaintiff's attorneys nor Schmidt's attorney was active in plaintiff's communications with Schmidt."; "Thus, given the absence of the direct involvement of attorneys here, it is impossible to conclude that a common legal strategy was being formulated."; "Therefore, the common interest rule is inapplicable and plaintiff has waived the attorney-client privilege by disclosing communications with his attorney to Schmidt.")

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY

Chapter: 20.1103
Case Name: Kagan v. Minkowitz, 500940/2016, 2016 N.Y. Misc. LEXIS 4577, 2016 NY Slip Op 32429(U) (N.Y. Dec. 9, 2016)
(finding that plaintiff's brother was outside privilege protection, and did not share a common interest with the plaintiff; in contrast, finding that disclosure to the brother did not waive work product protection; "[T]he common-interest privilege does not apply to the facts of this case since there is no indication that Gam [Plaintiff's brother and funder of the litigation] has a 'legal interest' in common with Kagan because there is no pending or anticipated litigation against Gam.")

Case Date Jurisdiction State Cite Checked
2016-12-09 State NY

Chapter: 20.1103
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
(holding that plaintiff had waived privilege protection for a legal opinion by turning it over to McCormick, which insisted on receiving the opinion before purchasing the plaintiff; rejecting plaintiff's argument that it and McCormick shared a common interest, because the court found there was no palpable threat of litigation; "As there was no actual litigation when Plaintiff disclosed the Opinion Exhibits to McCormick, the first type of communication protected by CLI privilege does not apply here. The question is then whether the Opinion Exhibits fall in the second category of communications: are the Opinion Exhibits communications between potential co-defendants made in light of a palpable threat of litigation? After examining the evidence provided by both parties concerning relations between SARC and Plaintiff in the period surrounding the disclosure of the Opinion Exhibits to McCormick, the Court finds no palpable threat of litigation."; "Although Plaintiff claims Defendants threatened litigation, Plaintiff provides limited evidence of such a threat. Plaintiff relies on a claim by its attorney that an unspecified executive from Plaintiff commented 'a SARC executive or executives were upset about the turn of events and threatened [Plaintiff] with some sort of legal action.' Such an allegation is insufficient to establish a palpable threat of litigation. . . . Plaintiff also selectively quotes the August 2011 email SARC manager Jeff Waughtal sent to Plaintiff's then-CEO Matt Gase, attempting to paint relations between SARC and Plaintiff as acrimonious. . . . But review of the entire email reveals SARC was hoping to work out the brand issues with Plaintiff and at worst wanted to 'let sleeping dogs lie and keep doing what we are doing.'"; "Rather than sharing the Opinion Exhibits with McCormick to prepare for litigation, Plaintiff shared the Opinion Exhibits with McCormick as a condition of the sale of Plaintiff's stock. . . . Such a communication more closely aligns with a common business undertaking than preparation for litigation and is therefore not protected by the CLI [] privilege.")

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX
Comment:

key case


Chapter: 20.1103
Case Name: Margulis v. The Hertz Corp., Civ. A. No. 14-1209 (JMV), 2016 U.S. Dist. LEXIS 149472 (D.N.J. Oct. 28, 2016)
("Documents may be withheld on attorney-client privilege or work-product grounds. The common-interest rule allows the withholding party to share that privileged communication with others that are within a community of interest without waiving the underlying privilege. In order to avoid waiver of privilege protection when sharing protected communications, the disclosure of privileged information must be (1) made due to actual or anticipated litigation, (2) for the purpose of furthering a common interest, and (3) made in a manner not inconsistent with maintaining confidentiality against adverse parties."; "Here, no showing of underlying privilege has been made. The privilege log refers to 'Documents Withheld Under Common Interest Privilege.'. . . The log continues by identifying the applicable privilege for documents as the 'common interest privilege.' Id. As explained, this does not work. The claiming party must articulate how each document withheld is privileged from disclosure. The Court is not in a position to make this determination from what has been presented. Is the communication between an attorney and that attorney's client? Is the communication for purposes of receiving or providing legal advice? The email documents provided seem innocuous and likely not privileged, but more importantly, the requisite specific information is not provided and therefore the Court cannot make an informed analysis of the subject."; "Determining whether these emails are protected by the common-interest doctrine is premature and, in fact, impossible without determining whether they are privileged in the first place. For that reason, Defendant's invocation of the common-interest doctrine is premature and DENIED WITHOUT PREJUDICE. If Defendant has a basis to assert an actual privilege with respect to any of the communications withheld, it shall identify same, with as much detail as possible. If it cannot make this showing, the documents should be produced immediately.")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal NJ

Chapter: 20.1103
Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiffs brief is not entirely clear regarding how the common interest doctrine would apply in this case. If Plaintiff is simply arguing that Ms. Jasti has a common interest with the Plaintiff because it is important to both of them that Plaintiff prevail in the instant law suit, this Court has found no case that bends the common interest doctrine to such an extreme definition. If the argument is that Ms. Jasti and Plaintiff were both represented by their children and Mr. Rock, the common interest doctrine would not apply because Ms. Jasti and Plaintiff were not represented by different lawyers. It is possible that the joint lawyer doctrine might apply. . . . However, Plaintiff has not presented any argument on that doctrine, and, therefore, has not met his burden to prove that the privilege applies. As such, the Court rejects the Plaintiff's argument that the common interest doctrine applies.")

Case Date Jurisdiction State Cite Checked
2016-10-20 Federal IL

Chapter: 20.1103
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
(holding that the indemnitor and indemintee in an asset purchase agreement did not have a common interest; "This appeal requires us to consider the common interest doctrine, which extends the attorney-client privilege to communications between and among multiple parties sharing a common legal interest. We hold that an indemnification provision in an asset purchase agreement, standing alone, is insufficient to create a common legal interest between a civil litigant indemnitee and a third-party indemnitor.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NC

Chapter: 20.1103
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
(holding that the indemnitor and indemintee in an asset purchase agreement did not have a common interest; "While not binding, decisions by several federal courts and the North Carolina Business Court provide some clarity as to what constitutes a common legal interest, distinguishing it in particular from a common business interest. 'For the privilege to apply, the proponent must establish that the parties had some common interest about a legal matter.'"; "[T]he primary purpose of an insurance contract is defense and indemnification. By contrast, an indemnification provision in an asset purchase agreement is generally ancillary to the sale of a business, and Defendants have presented no evidence that their agreement with Blast [Third party] was otherwise. . . . The indemnification provision in the asset purchase agreement requires Blast to defend and indemnify Defendants from '[l]osses incurred or sustained . . . on account of or relating to . . . the use of the [a]ssets by [p]urchaser and the operation of the . . . [h]ealth [c]lubs . . . .' This language, and the nature of the asset purchase agreement, are most similar to the purchase agreement which was held to be insufficient in SCR-Tech [SCR-Tech LLC v. Evonik Energy Serv. LLC, 2013 NCBC 42, 2013 WL 4134602, at *6 (N.C. Bus. Ct. Aug. 13, 2013)] to create a tripartite privileged relationship. Blast is not a party to this litigation. Nor does Blast have any contractual authority to settle or otherwise affect the outcome of the suit against Defendants, unlike the insurer in Nationwide Mut. Fire Ins. [Nationwide Mut. Fire Ins. Co., 172 N.C. App. at 602-03, 617 S.E.2d at 45-46 (2005)]"; "Neither this Court nor the North Carolina Supreme Court has extended the common interest doctrine to relationships formed primarily for purposes other than indemnification or coordination in anticipated litigation. . . . Further, we are aware of no precedent indicating that federal courts within the Fourth Circuit have extended the common interest doctrine to a case 'where the sharing was not done by agreement relating to some shared actual or imminent, specific litigation.'. . . Blast's status as a non-party and the absence of evidence that this litigation was material to its asset purchase agreement with Defendants distinguishes this case from decisions relied upon by Defendants for protection through the common interest doctrine.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NC

Chapter: 20.1103
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 21 (N.Y. Sup. Ct. Apr. 21, 2016)
("The Interim Defense Funding Agreement ('Agreement') between HCC and the Paine Parties, which was also submitted for in camera review, also does not qualify for protection from disclosure under the common-interest privilege for the reasons already set forth. As argued by Plaintiffs, the Agreement is clearly a transactional document regarding coverage to the Paine Parties under the FPC Policy. As to the coverage issue, there is no dispute that HCC and the Paine Parties are adverse. Notably, the Agreement states that they have differing positions regarding coverage. HCC and the Paine Parties, therefore, do not share any common legal interest regarding the coverage issue. This Court's review of the Agreement does not reveal any defense strategies regarding the Fox-Paine Litigation. Accordingly, HCC shall produce the Interim Defense Funding Agreement.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 20.1103
Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, Dkt. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223 (W.D. La. March 29, 2016)
(inexplicably finding that a direct subsidiary did not have a common interest with its parent, and that the common interest therefore did not apply to communications between them; also finding plaintiff's disclaimer of any intent to sue the subsidiary meant the subsidiary could not be a common interest participant; "The February 2, 2016, email was written by Mike Dees, in house counsel for the Port and Port Rail, Inc., on the advice of outside counsel and was distributed to various Port employees and an employee of the non-party Port Rail, Inc. The Port argues that since Port Rail, Inc. is a direct subsidiary of the Port, it shares a common legal interest with the Port. We disagree. At the time the email was written the Port and Port Rail, Inc. were not co-clients being jointly represented in the ongoing litigation. Further, Port Rail, Inc. was not a potential client facing 'a palpable threat of litigation at the time of the communication.' The privilege applies when the parties share a common legal interest, not a commercial or financial interest and it does not extend to communications about joint business strategy. FSP Stallion 1, LLC v. Luce, 2010 U.S. Dist. LEXIS 110617, 2010 WL 3895914 *18 (U.S.D.C Nev. Sept. 30, 2010). IFG candidly admits that it has no intention of ever making Port Rail, Inc. a party to this litigation. Thus, if the email was in fact protected by the attorney-client privilege, we find that the privilege was waived by disclosing the communication to an employee of a non-party.")

Case Date Jurisdiction State Cite Checked
2016-03-29 Federal LA
Comment:

key case


Chapter: 20.1103
Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223, at *4 (W.D. La. Mar. 29, 2016)
May 18, 2016 (PRIVILEGE POINT)

"Court Issues a Surprising Common Interest Doctrine Decision"

The common interest doctrine can sometimes allow separately represented clients to avoid the normal waiver implications of disclosing privileged communications to each other. However, courts take widely varying views of the doctrine's reach, and reject its applicability in about half of the reported cases — after the participants have already shared privileged communications, and therefore waived their respective privileges.

In IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, plaintiff claimed that defendant's in-house lawyer (who jointly represented the defendant and its "direct subsidiary") waived privilege protection by sending an email to several of defendants employees — and one subsidiary employee. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223, at *4 (W.D. La. Mar. 29, 2016). Defendant argued that such disclosure did not waive defendant's privilege, because the defendant shared a common interest with its own subsidiary. The court found the common interest doctrine inapplicable — because the subsidiary did not face any litigation threat. The court quoted plaintiff, which indicated that "it has no intention of ever making [the subsidiary] a party to this litigation." Id. At *5. Thus, the court held that defendant waived its privilege by disclosing the communication "to an employee of a non-party" — its own subsidiary. Id. Fortunately for defendant, the court also found the work product doctrine applicable, and held that disclosing the email to the subsidiary did not waive that separate protection.

This is a remarkable decision. The common interest doctrine should never have become an issue, because the in-house lawyer jointly represented the parent and its subsidiary. And the court's apparent insistence that every common interest participant must itself anticipate litigation could reward some obvious mischief — plaintiffs could threaten a number of possible defendants, but later disclaim any intent to sue one of them. All in all, cases like this highlight the risk of relying on the common interest doctrine.

Case Date Jurisdiction State Cite Checked
2016-03-29 Federal LA
Comment:

key case


Chapter: 20.1103
Case Name: Obesity Research Institute, LLC v. Fiber Research International, LLC, Case No. 15-cv-0595-BAS-MDD, 2016 U.S. Dist. LEXIS 32605 (S.D. Cal. March 11, 2016)
(holding that the supplier product did not have a common legal interest with a litigant; "The communications at issue pertain to the retention of ABC Laboratories to conduct testing of certain products in connection with this litigation. . . . The common interest issue pertains to Mr. Salerno and his company, Nutralliance, Inc. According to Mr. Salerno, Nutralliance supplies the raw material ingredients used in Plaintiff's Lipozene product to other companies that manufacture and bottle the Lipozene product ultimately sold by Plaintiff. . . . Neither Nutralliance nor Mr. Salerno are parties to this instant litigation and their legal, as opposed to commercial, interest in the outcome of this litigation is unclear. Accordingly, the Court declines to extend the common interest doctrine to Mr. Salerno and Nutralliance, Inc.")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal CA

Chapter: 20.1103
Case Name: Delaware Display Group LLC v. Lenovo Group Ltd., Civ. A. Nos. 13-2108-, -2109- & -2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016)
April 6, 2016 (PRIVILEGE POINT)

"Courts Analyze the Common Interest Doctrine's Application in a Patent Context"

Courts recognizing the common interest doctrine limit its non-waiver effect to participants' common legal rather than financial interests. It can be difficult to apply this abstract principle to communications between a patent owner and another company that will earn royalties from the patent's use. The latter has an obvious interest in the patent's enforceability, but is that a legal or merely a financial interest?

In Rembrandt Patent Innovations, LLC v. Apple Inc., the court dealt with the common interest doctrine's applicability to communications between patents' inventors and their employer (the University of Pennsylvania), which had retained royalty rights but not ownership rights. Nos. C 14-05094 & -05093 WHA, 2016 U.S. Dist. LEXIS 13749 (N.D. Cal. Feb. 4, 2016). The court acknowledged that the Ninth Circuit had not addressed "the scope of a common legal interest with regard to transactions between the inventors of a patent and partners or potential partners in business ventures seeking to monetize that patent." Id. At *14. The court ultimately held that the common interest doctrine protected the communications -- because the inventors and Penn had a common legal interest "in licensing and enforcement opportunities, perfecting title in the patent, and defending the patent's validity."Id. At *16. About three weeks later, the District of Delaware reached the opposite conclusion. In Delaware Display Group LLC v. Lenovo Group Ltd., the court assessed a privilege claim for files belonging to non-party Rambus -- which had similarly retained patent royalty rights but not ownership rights. Civ. A. Nos. 13-2108-, -2109- & -2112-RGA, 2016 U.S. Dist. LEXIS 21461 (D. Del. Feb. 23, 2016). The court rejected the patent owner's argument that it shared a common interest with Rambus in assuring the patents' strength and enforceability. As the court put it, "[p]laintiffs' logic would find that any seller with rights to royalty payments is engaged in a common legal cause with its buyer. The only interest Rambus retained in the patents is a commercial one." Id. At *17.

Distinguishing between a legal and financial interest can be very difficult. Courts' disagreement about the common interest doctrine's applicability in the patent setting highlights the risk of relying on the common interest doctrine in seeking to avoid waiver of privilege protection.

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal DE
Comment:

key case


Chapter: 20.1103
Case Name: Certain Underwriters at Lloyd's v. National Railroad Passenger Corporation, 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 27041 (E.D.N.Y. Feb. 19, 2016)
(holding that London insurance brokers were outside privilege protection because they did not meet the Kovel standard; noting the difference between New York state and New York federal court federal court law on the issue of client agents within privilege protection; finding the common interest doctrine inapplicable; "Even assuming that LMI shared a common legal interest with other insurers on the same Policies, LMI's failure to identify the specific recipients of the logged documents is fatal to LMI's claim of attorney-client privilege and the common interest exception to the waiver doctrine."; "Essentially, LMI asks this Court to simply trust, in a vacuum, that only the appropriate parties were privy to these communications. . . . Is true that we cannot list for you, Your Honor, every insurer who looked at the communication.'). . . . Surely, LBB, or its successor firm, Lord Locke, should have maintained a contemporaneous record of which insurers it represented for purposes of the Policies and/or which parties were receiving its privileged communications."; "Therefore, the Court concludes that the insurers have not met their burden of establishing the factual predicate for withholding documents with unspecified Recipient Descriptions on the basis of attorney-client and common interest privilege. Therefore, LMI must produce those documents by March 7, 2016.")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal NY

Chapter: 20.1103
Case Name: DRFP, LLC v. The Republica Bolivariana de Venezuela, Case No. 2:04-cv-793, 2015 U.S. Dist. LEXIS 141788 (S.D. Ohio Oct. 19, 2015)
(holding that disclosing privileged communications to a public relations firm waived the privilege, and that the firm did not have a common interest with the country of Venezuela, which hired the firm; "The Court is also skeptical of Skye's claim that the common interest doctrine applies. In an order filed on September 25, 2015 . . . The Court applied that doctrine, explaining that it served to protect communications between multiple clients who had a common interest in a litigated matter. As Venezuela points out, Sitrick does not appear to be a holder of an interest either in the notes that are the subject of this lawsuit or other notes purportedly issued by Venezuela; its interest in the outcome is purely a function of its having been hired by Skye. That is not sufficient to invoke the doctrine.")

Case Date Jurisdiction State Cite Checked
2015-10-19 Federal OH

Chapter: 20.1103
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., No. 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
July 8, 2015 (PRIVILEGE POINT)

"Common Interest Protection Depends on Participants Cooperating in a 'Common Legal Strategy'"

The common interest doctrine can avoid the normal waiver implications of separately represented clients sharing privileged communications. But the doctrine applies only in specific situations, and requires careful nurturing and support.

In Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., No. 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015), Judge Gorenstein assessed a common interest agreement between defendant trademark licensor and several licensees. Plaintiff claimed that the participants shared only a common commercial rather than a legal interest, but the court found it unnecessary to address that issue. Instead, the court focused on the doctrine's requirement that common interest participants cooperate in pursuing a common legal strategy. After reviewing the withheld communications in camera, the court noted that the licensees provided the licensor "factual information" the licensor sought from them — but that "[t]here is no evidence that the licensees had any hand in formulating a joint legal strategy or that they had at any time agreed to pursue a common legal goal" with the licensor. Id. At *12.

Separately represented clients contemplating a common interest agreement should recognize this prerequisite to the doctrine's applicability — and then make sure that their correspondence reflects the formulation and pursuit of a common legal strategy.

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 20.1103
Case Name: Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015)
(finding that a licensor and several licensees could not rely on a common interest agreement to avoid a waiver, because they had not worked together to pursue a common legal strategy; also finding the work product doctrine inapplicable; "Certainly, the record reflects that the licensees cooperated by providing DMFI with information that DMFI later used to respond to FDP. . . . But DMFI's claim that the licensees cooperated in 'formulating' DMFI's legal strategy is not supported by any evidence. First, the affidavit offered by DMFI contains indications that DMFI formulated its own legal strategy independent of any input from the licensees. . . . Additionally, the mere fact that a licensee provided basic information to DMFI about products it marketed under the Mark, see id., or requested and received DMFI's guidance on how to proceed . . . Does not establish that the parties 'coordinated' in formulating a legal strategy. These actions show at best that the licensees 'theoretically share' a similar interest with DMFI in the ultimate adjudication of FDP's claims. They do not show the kind of coordinated effort to devise a response that we would expect to see from parties who had undertaken to act together in pursuit of a common legal interest. . . . Additionally, the Court has reviewed the communications at issue. They provide no additional evidence that DMFI and its licensees were engaged in formulating a common legal strategy. In essence, they show only what was already suggested by DMFI's submissions in opposition to FDP's motion to compel: that DMFI's licensees cooperated with DMFI by providing factual information that DMFI sought from them. There is no evidence that the licensees had any hand in formulating a joint legal strategy or that they had at any time agreed to pursue a common legal goal with DMFI.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 20.1103
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members)

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 20.1103
Case Name: In re Milo's Kitchen Dog Treats Consolidated Cases, Civ. A. No. 12-1011, 2015 U.S. Dist. LEXIS 63281 (W.D. Pa. May 14, 2015)
(finding that there was no common interest between the plaintiffs and potential class members, with whom the plaintiff communicated by Facebook message; "The common interest privilege protects from disclosure communications made by parties with a common interest to each other in furtherance of a joint defense to litigation. . . . To invoke the joint defense agreement or common interest privilege the party asserting the privilege must demonstrate that: (1) the parties have agreed to a joint defense effort; (2) the parties have a common-interest in the litigation or a jointly shared litigation strategy; (3) the communications were made pursuant to such agreement; and (4) the continued confidentiality of the communications, i.e., the communications were not disclosed to other third parties such that the privileges were waived.")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal PA

Chapter: 20.1103
Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; finding that there was no common interest between the wife and the litigation funder; "Turning to Plaintiff's common legal interest argument, once again the substance of Ms. Napp's role undermines this privilege theory. Ms. Napp is not a party to this litigation, and there has been no suggestion that she has any legal claim against Defendants whatsoever. She thus cannot possibly share any legal interest with Plaintiff sufficient to invoke the common interest doctrine. . . . Although the two may have a common financial interest in the outcome of this litigation, that relationship does not fall into the narrow category primarily reserved for co-litigants pursuing a shared legal strategy. . . . The 'Joint Interest' agreement between Ms. Napp and Plaintiff cannot change the substance of their relationship, which is inherently financial and in no way within the mold of a common interest.")

Case Date Jurisdiction State Cite Checked
2015-01-30 Federal NY

Chapter: 20.1103
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "Similarly, no common legal strategy existed between the Acacia [potential buyer] and the patent sellers. In order to establish a common legal strategy, "'[w]hat is important is not whether the parties theoretically share similar interests but rather whether they demonstrate actual cooperation toward a common legal goal.'". . . Here, Acacia does not formulate a legal strategy with any of the patent sellers. Instead, Acacia, 'in its sole judgment decider[s] to institute enforcement actions . . . [and] reserves the sole right to select counsel, direct the litigation, and to negotiate and determine the terms of any settlement or other disposition.'. . . The terms of the contracts, therefore, preclude any common legal strategy and provide Acacia with total discretion in prosecuting infringements.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY
Comment:

key case


Chapter: 20.1103
Case Name: Microsoft Corp. v. Acacia Research Corp., 13 cv 8275 (PAC), 2014 U.S. Dist. LEXIS 161457 (S.D.N.Y. Nov. 17, 2014)
(analyzing the common interest doctrine in connection with a patent purchaser's disclosure of its lawyer's advice to the potential seller; "Acacia [potential buyer] argues that the materials remain privileged, notwithstanding their disclosure to third party sellers, because a common legal interest exists and because the disclosures were made in the course of formulating a common legal strategy. The argument is rejected. Acacia is pursuing its own commercial interest in attempting to ascertain whether the patents at issue are fertile with the possibility of infringement.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal NY

Chapter: 20.1103
Case Name: In re Fresh and Process Potatoes Antitrust Litig., Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 74936, at *31-32 (D. Idaho May 30, 2014)
(discussing the common interest doctrine; "The fact they may have had a shared desire to maintain compliance and avoid litigation also does not transform the cooperatives' common interest with Potandon 'into a legal, as opposed to commercial, matter.' . . . . Although Potandon characterizes the interest it shared with the cooperatives as a 'legal' interest, naming it as such does not transform its business interest into a legal interest for purposes of the common interest doctrine. There is no evidence of any concern regarding pending or threatened litigation raised during the time period of these communications. Even if there was a general consensus to avoid litigation by maintaining compliance with Capper-Volstead, 'a business strategy which happens to include a concern about litigation is not a ground for invoking the common interest rule.'")

Case Date Jurisdiction State Cite Checked
2014-05-30 Federal ID

Chapter: 20.1103
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
(analyzing common interest doctrine; "The 'common interest' LMI asserts exists between it and the Navy, in essence, is little more than a shared desire to see the same outcome in the present case, i.e. a judgment in LMI's favor that requires Steadfast to reimburse LMI for the cost of remediating the pollution conditions at the sites at issue in this case. This interest is insufficient to entitle LMI to protection under the common interest doctrine with respect to the documents with an underlying claim of attorney-client privilege. . . . While LMI does claim to have a written agreement between it and the Navy, entitled 'Common Interest Agreement Relative to Steadfast Insurance Policies,' it provides no evidence as to what that agreement entailed, let alone whether the communications LMI is seeking to protect were made 'in pursuit of a joint strategy in accordance with' that agreement."; "[A] common interest was found between the parties primarily on the basis that their disclosures were made to advance a joint legal strategy concerning either separate litigation involving similar claims and issues or reasonably anticipated joint litigation. Here, however, the Navy has not filed a separate suit against Steadfast concerning the remediation sites at issue, nor is it an insured party under the ELI Policy between LMI and Steadfast that is central to LMI's claims in this case, therefore precluding the possibility of a suit by the Navy against Steadfast presenting similar issues to those that are the subject of this case.")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 20.1103
Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *42, *44, *45-46, *47-48, *50 (N.D. Ill. Jan. 6, 2014)
(analyzing the waiver effect of a company disclosing work product-protected documents to a litigation funding company; concluding that (1) the litigation funding arrangement was not unlawful champerty or maintenance; (2) the arrangement between the company and the litigation funding company was not relevant and therefore was not discoverable; (3) the company's estimate of its chance of success was not admissible because it was opinion work product; (4) the company waived privilege protection for any documents shared with a litigation funding company, because they did not share a common legal interest; and (5) the company waived work product protection by disclosing its work product to prospective funders with which the company did not have a confidentiality agreement; "[B]y Miller's own classification, the contemplated funding transaction was merely commercial or financial, and it documents conveyed to funders was not protected by the attorney-client privilege."; "To avoid waiver and shield from discovery information it provided prospective funders, Miller seeks to invoke the 'common interest' doctrine, claiming claimed [sic] to be privileged that it shared with the funding sources a 'common interest in the successful outcome of the litigation.'"; "In this, as in most Circuits, the 'common interest' doctrine will only apply 'where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise.' . . . A shared rooting interest in the 'successful outcome of a case' -- and that is what Miller explicitly alleges here -- is not a common legal interest."; "Here, there was no legal planning with third party funders to insure compliance with the law, litigation was not to be averted, as it was well underway, and Miller was looking for money from prospective funders, not legal advice or litigation strategies. The funders, for their part, were interested in profit. Legal strategies and subtleties were exclusively for Kirkland & Ellis and for its predecessor in the case, Nixon Peabody. In short, the funders and Miller did not share a common legal interest, and materials shared with any actual or prospective funders lost whatever attorney-client privilege they might otherwise have enjoyed." (footnote omitted); "In conclusion, any documents otherwise protected by the attorney-client privilege that Miller shared with any prospective funder lost their protection under the attorney-client privilege when shared with third party funders.")

Case Date Jurisdiction State Cite Checked
2014-01-06 Federal IL B 5/14

Chapter: 20.1103
Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014)
March 12, 2014 (PRIVILEGE POINT)

"Northern District of Illinois Analyzes Privilege and Work Product Issues Involving Litigation Funding"

Large companies increasingly turn to litigation funding as a means of financing commercial litigation. Only a few decisions have dealt with the privilege and work product waiver impact of companies disclosing protected documents to potential funders and the ultimately chosen funder.

In Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779 (N.D. Ill. Jan. 6, 2014), the Northern District of Illinois issued an extensive opinion on these issues. After finding that litigation funding does not violate Illinois champers or maintenance doctrines, the court held as follows: (1) the "deal documents" between the company and the ultimately chosen funder were irrelevant and therefore not discoverable; (2) the company waived attorney-client privilege protection for any materials shared with "any actual or prospective funders" – rejecting the company's common interest doctrine argument after concluding that "[a] shared rooting interest in the 'successful outcome of a case' . . . Is not a common legal interest"; and (3) the company also waived its separate work product protection for any work product that it shared with prospective funders – "except those with which it had a confidentiality agreement." Id. At *33, *46-48, *72. The court noted "it appears that [the company] took protective measure with some but perhaps not all prospective funders." Id. At *71-72.

Companies communicating with prospective litigation funders must remember the fragility of the attorney-client privilege and the importance of confidentiality agreements when disclosing work product to any third party.

Case Date Jurisdiction State Cite Checked
2014-01-06 Federal IL
Comment:

key case


Chapter: 20.1103
Case Name: Lord Abbett Municipal Income Fund, Inc. v. Asami, No. C-12-03694 DMR, 2013 U.S. Dist. LEXIS 147830, at *11-13 (N.D. Cal. Oct. 11, 2013)
(analyzing the common interest doctrine; finding that bondholders and Wells Fargo (the indenture trustee) did not share a common interest; "As Lord Abbett asserts, 'it is [Wells Fargo's] obligation to ensure the Bondholders are repaid under the Indenture.'. . . The common legal interest between Lord Abbett and Wells Fargo is to recover the bond debt owed to Lord Abbett and the other bondholders. Yet repayment is not at issue in this lawsuit, in which Lord Abbett seeks tort damages for the Board Members' alleged misrepresentations prior to the sale of the bonds. In fact, in its opposition to the Board Members' motion to dismiss, Lord Abbett asserted that Wells Fargo did not have an interest in the issues presented in this action. Specifically, in arguing that a release of claims in the bankruptcy settlement agreement did not bar its present action, Lord Abbett expressly claimed that its negligent misrepresentation claim was outside the scope of Wells Fargo's authority as the trustee under the Indenture. . . . As Wells Fargo does not have an interest in Lord Abbett's negligent misrepresentation claim, Lord Abbett and Wells Fargo do not 'have in common an interest in securing legal advice' related to this matter. . . . Therefore, the common interest doctrine does not apply to their communications regarding this litigation.")

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal CA B 5/14

Chapter: 20.1103
Case Name: Harpel v. Nicholson, Civ. A. No. 12-10280-RWZ, 2013 U.S. Dist. LEXIS 141684, at *7 (D. Mass. Oct. 1, 2013)
(analyzing the common interest doctrine; finding that partnership shared a financial rather than a legal interest; "The common enterprise between Eastwood/ISG [non-parties] and Harpel was of a business, not legal, nature. To be sure, the advisory agreement anticipates litigation, but Eastwood/ISG's involvement in the matter was not in furtherance or protection of its own legal interests, but rather to assist Harpel and Bernstein [plaintiff's lawyer] in hopes of profiting from Harpel's potential recovery. This was, in essence, a commercial arrangement. That Eastwood/ISG obviously shared Harpel's desire to prevail against Nicholson, and stood to benefit financially therefrom, does not amount to the existence of a common legal interest.")

Case Date Jurisdiction State Cite Checked
2013-10-01 Federal MA B 5/14

Chapter: 20.1103
Case Name: Viesti Assocs., Inc. v. Pearson Educ., Inc., Civ. A. Nos. 12-CV-01431- & 11-CV-01687-PAB-DLW, 2013 U.S. Dist. LEXIS 103788, at *4, *4-5, *5 (D. Colo. July 23, 2013)
(analyzing a common interest agreement; "Prior to the execution of the assignments, the interests of the copyright owners were in conflict with the interests of VAI as they were negotiating an arms length transfer of their copyrights to VAI. Additionally, neither VAI nor the third-party copyright owners were 'party's attorney nor other representative' prior to the assignment."; "Prior to the assignment, even if VAI and the third-party copyright owners communications contained work product, the work product doctrine was waived by VAI's voluntary disclosure to third-parties."; "The interests of VAI and third-party copyright owners were not identical prior to the assignment because they were negotiating an arms-length transaction.")

Case Date Jurisdiction State Cite Checked
2013-07-23 Federal CO B 4/14

Chapter: 20.1103
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *9 (E.D. Wis. July 10, 2013)
("Flynn and Perry appear to have been employees of IOS [company where the criminal defendants worked] at the time of the communications at issue, and the Furr defendants include them on their joint defense list . . . . But the Furr defendants have not shown that they were part of any joint defense group. An employee's cooperation in an internal investigation conducted by the company's attorney is not equivalent to the employee seeking personal representation. . . . [I]t appears that Perry and Flynn were IOS employees responding to their company's internal inquiries. The burden is on the defendants to demonstrate the existence of a joint defense agreement that precludes disclosure of documents and communications.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 20.1103
Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *46-47 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's suggestion that he did not waive privilege because he was under the impression that he had some sort of joint interest with Aéropostale in correcting its SEC disclosures is absurd. In his motion, Finazzo repeatedly tip-toes around, without actually asserting, the idea that he thought Slezak, as Aéropostale's general counsel, was acting as his lawyer. . . . From the Court's review of the transcript, it is crystal clear that the meeting was not about Aéropostale collecting information or Aéropostale seeking Finazzo's help in any way. Rather the purpose of the meeting was to confront Finazzo and fire him. . . . Although the meeting was friendly in tone and Geiger did give Finazzo some advice for his future after Aéropostale, Finazzo could not have reasonably thought Slezak was present at the meeting as his lawyer or that his interests and Aéropostale's were aligned.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal NY B 2/14

Chapter: 20.1103
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "Egiazaryan argues that he and BGR [public relations agency] had a common interest in 'protecting [his] legal interests' and 'formulating a legal strategy on [his] behalf . . . .' Opp. at 13. But the doctrine does not contemplate that an agent's desire for its principal to win a lawsuit is an interest sufficient to prevent waiver of privilege inasmuch as it does not reflect a common defense or legal strategy. . . . BGR is not a party to any of Egiazaryan's various lawsuits and thus has no need to develop a common litigation strategy in defending those lawsuits. Indeed, it makes no suggestion that it had a need to do so.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 20.1103
Case Name: Domanus v. Lewicki, No. 08 C 4922, 2012 U.S. Dist. LEXIS 177325, at *9 (N.D. Ill. Dec. 14, 2012)
(analyzing a derivative case; ultimately holding that the company and individual defendants in a derivative case did not share a common interest; "[T]he common interest doctrine is limited to those circumstances where the parties have an identical -- not merely similar -- legal interest and the communication is made to further the ongoing, common interest.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal IL B 9/13

Chapter: 20.1103
Case Name: Domanus v. Lewicki, No. 08 C 4922, 2012 U.S. Dist. LEXIS 177325, at *14-15 (N.D. Ill. Dec. 14, 2012)
(analyzing a derivative case; ultimately holding that the company and individual defendants in a derivative case did not share a common interest; "[I]t is simply not reasonable for the direct Defendants to believe they have a common legal interest with the very entities they are accused of defrauding.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal IL B 9/13

Chapter: 20.1103
Case Name: Crosby v. Blue Cross Blue Shield of La., Civ. A. No. 08 0693 SECTION: "S" (4), 2012 U.S. Dist. LEXIS 159605, at *12 (E.D. La. Nov. 7, 2012)
("In the Fifth Circuit 'the two types of communications protected under the [common legal interest] are: (1) communications between co-defendants in actual litigation and their counsel; and (2) communications between potential co-defendants and their counsel.". . . '[I]t is questionable in the Fifth Circuit whether the common interest doctrine extends to plaintiffs.'. . . The Court has found no authority in this circuit which extends 'common legal interest' principles to plaintiffs.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal LA B 5/13

Chapter: 20.1103
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12-mc-00131-SI, 2012 U.S. Dist. LEXIS 158348, at *2, *3-4 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "SawStop, however, has not shown that it shares a sufficient common legal interest with the recipients of the two documents at issue, prospective investors, to support application of the common interest doctrine. Although SawStop argues that other courts have found a sufficient common interest in 'valid and enforceable patent rights,' such a sufficient common interest has always been found to be part of a closer and more tangible legal concern."; "There is no sufficiently close and tangible legal concern present here. The sole reason the recipients of the documents -- potential investors -- would be interested in the 'legal advice' found therein would be to estimate their opportunity for pecuniary gain, a purely commercial concern. . . . Without such a close and tangible legal concern -- aside from general economic interest in investing in a company that had valid intellectual property rights -- the common interest doctrine threatens to create an intellectual property exception to the attorney-client privilege waiver doctrine.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.1103
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12 mc 00131 SI, 2012 U.S. Dist. LEXIS 158348, at *7 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "[T]he Court is not persuaded that the common interest doctrine is applicable when the disclosure of legal advice is to an unknown number of potential investors, there is no formal confidentiality agreement between the parties, and the parties' sole joint legal interest is in valid intellectual property rights needed in order to maximize the value of an investment.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.1103
Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12 mc 00131 SI, 2012 U.S. Dist. LEXIS 158348, at *6 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "Finding a waiver in SawStop's actions by mailing its investment 'offering package' to prospective investors does not condemn every company seeking investors to choosing between making misrepresentations or waiving attorney-client privilege. Instead, as it occurred in the Case cited cases, companies can wait until they have entered into a more formal negotiating relationship and confidentiality agreement before disclosing privileged information, which would further assist in demonstrating the existence of a common interest.")

Case Date Jurisdiction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 20.1103
Case Name: Glassman v. Crossfit, Inc., Civ. A. No. 7717 VCG, 2012 Del. Ch. LEXIS 248, at *9, *10, *11 (Del. Ch. Oct. 12, 2012)
(finding that the common interest doctrine did not apply to protect communications between a wife going through a divorce and the buyer of her interest in a company; "Though the Defendants do concede that Ms. Glassman and Anthos would have shared a common interest if they had 'discussed the threat of both being sued by Greg Glassman or CrossFit,' the Defendants contend that there were no such communications." (internal citation omitted); "Ms. Glassman may not withhold relevant documents under the common-interest doctrine simply because her deal with Anthos might be affected by the Arizona litigation or because the deal might be subject to litigation by the Defendants."; "[C]ommunications about a business deal, even when the parties are seeking to structure a deal so as to avoid the threat of litigation, will generally not be privileged under the common-interest doctrine. The doctrine only protects those communications that directly relate to the parties' legal interests, such as their potential common defense strategies.")

Case Date Jurisdiction State Cite Checked
2012-10-12 State DE B 12/13

Chapter: 20.1103
Case Name: In re Wellbutrin XL Antitrust Litig., Civ. A. No. 08-2431 (direct), No. 08-2433 (indirect), 2012 U.S. Dist. LEXIS 66312 (E.D. Pa. May 11, 2012)
(holding that a common interest agreement does not automatically assure common interest protection; "To infer concerted action from the mere existence of the Common Interest Agreement as to the Impax paragraph IV certification and discussions between the defendants' counsel would exercise in speculation.")

Case Date Jurisdiction State Cite Checked
2012-05-11 Federal PA

Chapter: 20.1302
Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. 248PA16, 2017 N.C. LEXIS 895 (N.C. Sup. Ct. Nov. 3, 2017)
(finding that defendant's agreement to indemnify another company for any liability created a joint representation (which the court called a "tripartite" representation; citing with approval Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 602-03, 617 S.E. 2d 40, 46 (2005), aff'd per curiam 360 N.C. 356, 625 S.E. 2d 779 (2006); "In all significant ways, the question of the formation of an attorney-client relationship here is indistinguishable from that resolved by our decision in Raymond. Blast contractually agreed to indemnify and defend defendants against any losses incurred relating to their real property lease. After this litigation commenced, defendants notified Blast of the litigation, and Blast engaged counsel to defend the case under the indemnification agreement. Like the common interest found in the insurance context, Blast's interest in defendants' legal well-being as indemnitees creates the common interest in this litigation: The indemnification provision subjects Blast to any damages that result from an adverse judgment against defendants. Accordingly, a tripartite attorney-client relationship exists between defendants, Blast, and their defense counsel.")

Case Date Jurisdiction State Cite Checked
2017-11-03 State NC

Chapter: 20.1302
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "[W]e note that defendant's contention that it was sufficiently anticipating litigation in July 2012 to trigger work product coverage is in evident tension with its earlier assertion, in connection with the Gates memorandum, that on February 26, 2013 the carrier and Broadrock were pursuing a common interest. If the carrier was preparing as early as July 2012 for litigation with its insured, it cannot plausibly be said that as of February 26, 2013 -- before it had conceded any legal obligation to provide indemnity -- it had resolved its differences with Broadrock so as to be pursuing an identical legal interest with the insured.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 20.1302
Case Name: Clifford v. Church Mutual Ins. Co., Civ. A. 2:13-cv-853, 2014 U.S. Dist. LEXIS 149224 (S.D. Ohio Oct. 21, 2014)
("The parties seem to agree that communications between an insurance company and outside counsel retained to provide legal advice regarding coverage, rather than to perform routine claims adjustment, enjoy the protection offered by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal OH

Chapter: 20.1302
Case Name: National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc, No. 650515/2010, 2013 NY Slip Op. 31967(U), at 9-10, 10 (N.Y. Sup. Ct. Aug. 15, 2013)
("[W]hile the common interest privilege is an extension of the attorney-client privilege, it follows the contours of the trial preparation materials and work product protections in that it requires litigation or its anticipation. And, an insurance company cannot claim that it anticipates litigation until it makes a firm decision to deny coverage."; "Therefore, although no court has addressed this specific issue, it logically follows that insurance companies must decide to deny coverage before they may invoke the common interest privilege and protect their communications with third parties from disclosure.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 4/14

Chapter: 20.1302
Case Name: Carolina Cas. Ins. Co. v. Gallagher Sharp, Case No. 1:10cv2492, 2013 U.S. Dist. LEXIS 39628, at *12 (N.D. Ohio Mar. 1, 2013)
(recognizing a common interest between an insurance company and an insured; "Common interest does not require that the participants have a financial interest in the outcome.")

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal OH B 3/14

Chapter: 20.1302
Case Name: Carolina Cas. Ins. Co. v. Gallagher Sharp, Case No. 1:10cv2492, 2013 U.S. Dist. LEXIS 39628, at *12-13 (N.D. Ohio Mar. 1, 2013)
(recognizing a common interest between an insurance company and an insured; "Carolina was the malpractice insurance carrier for the Miller Parties, who were represented by Defendants during a malpractice suit. The instant litigation arises from Defendants' representation of the Miller Parties, and the documents at issue were created at a time when the Miller Parties were considering joining Carolina as a plaintiff in the instant case. . . . The communication between Mr. Miller and Attorney Manos [plaintiff's lawyer] that occurred on November 1, 2010 is thus squarely described as between friendly litigants with similar interests and temporally related to the filing of the Complaint on November 1, 2010. . . . Moreover, the parties intended the communication to be confidential, and the status of Mr. Miller as a potential witness does not make it less so.")

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal OH B 3/14

Chapter: 20.1302
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 610 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "It is evident that Defendant shared a common legal interest in defending its insured in the underlying proceedings. This interest was legal, and not just financial, because of the multiple additional issues -- including, e.g., the question of whether other entities might proceed against the insurer in the event of an unsatisfactory result.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 20.1302
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 607 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "When applying the doctrine to the present case, if it is assumed that the insurer shares a 'common legal interest' with Plaintiffs (and also the MapleWood entities, Julio's [part of MapleWood Partners] entities and Intervenors), then Miller's [plaintiffs' lawyer] communications to Defendant on behalf of all of his clients and as to all details of the RRGC [plaintiff in underlying proceedings] settlement are construed to be two client's 'consulting in common' of an attorney. Miller communicated, presumably, at all times with the permission of MapleWood Partners, acting through Glaser [limited partner]. The other clients cannot now claim that certain aspects were privileged, as they apparently raised no objection at the time and, in any event, Glaser apparently granted permission for the disclosures on behalf of the corporate entity holding the privilege."; "Plaintiffs oppose the application of the 'common legal interest' doctrine to this case and argue, essentially, that once the interests of an insurer and its insured become adverse, the insured's prior communications (even if they previously were required to be disclosed to the insurer pursuant to a cooperation clause) become privileged retroactively. This is a highly impractical result -- insurers would have to unring the bell of what they had received, properly, when the insured was satisfied with the insurers' conduct, and return any communications or documents immediately upon being sued in a subsequent coverage dispute.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 20.1302
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 693 (N.D. Ga. 2012)
(analyzing a bad faith claim against an insurance company by the insured's assignee; ultimately holding the plaintiff assignee could obtain communications with the insured's outside lawyer but not the insurance company's in-house lawyer, and could overcome any work product protection other than opinion work product protection; "The Court finds that the joint defense/common interest doctrine applies here, and Nationwide cannot claim the protection of the attorney-client privilege over its communications with Hawkins & Parnell regarding the defense of its insured in the underlying action unrelated to the issue of coverage. Such communications are therefore discoverable in this third-party bad faith action, and Nationwide's objection to the production of documents as being protected by the attorney-client privileged is overruled. However, the Court cannot reach the same conclusion regarding Nationwide's communications with its in-house claims counsel involving the rendering of legal services as there is no presumption that in-house counsel is employed to represent the interests of the insured as opposed to the insurer.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 9/13

Chapter: 20.1303
Case Name: Grimsley v. The Manitowoc Co., Inc., Civ. No. 1:15-CV-1275, 2017 U.S. Dist. LEXIS 108500 (M.D. Pa. July 13, 2017)
(finding that there was no common interest between an insured and a worker's compensation insurance carrier; "Here, we reject Grove's broad assertion that, by virtue of its purported insured-insurer relationship with Sentry, Grove's attorneys 'jointly represent[] or act[] for the common interest of" both Sentry and Grove, and that Grove and its insurer jointly hold attorney-client privilege 'as to any third-part[ies].'. . . We initially note that it is unclear whether Grove relies on the 'common interest' or 'co-client' doctrine to assert attorney-client privilege, as citations in its briefing appear to conflate the doctrines. (See id.). In any event, Grove provides little information, beyond asserting that it is insured by Sentry, as to how either doctrine applies in this case. For instance, it is not apparent whether Sentry and Grove are represented by separate counsel, a requirement for application of the common interest doctrine, or by the same counsel, which is indicative of the co-client doctrine."; "Moreover, as to the common interest doctrine, we note that Sentry is not a party to the instant action and has not denied workers' compensation coverage with respect to the Incident. Consequently, Grove has not shown with any particularity how Sentry is involved in similar or related legal proceedings so as to share common legal interests with Grove in mounting a defense in this case. . . . Grove has also not shown how it is Sentry's co-client, as there is no indication that Sentry is paying for Grove's counsel, and Sentry's only apparent interest in this litigation is to generally minimize its insured's exposure to liability.")

Case Date Jurisdiction State Cite Checked
2017-07-13 Federal PA

Chapter: 20.1303
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 21 (N.Y. Sup. Ct. Apr. 21, 2016)
("The Interim Defense Funding Agreement ('Agreement') between HCC and the Paine Parties, which was also submitted for in camera review, also does not qualify for protection from disclosure under the common-interest privilege for the reasons already set forth. As argued by Plaintiffs, the Agreement is clearly a transactional document regarding coverage to the Paine Parties under the FPC Policy. As to the coverage issue, there is no dispute that HCC and the Paine Parties are adverse. Notably, the Agreement states that they have differing positions regarding coverage. HCC and the Paine Parties, therefore, do not share any common legal interest regarding the coverage issue. This Court's review of the Agreement does not reveal any defense strategies regarding the Fox-Paine Litigation. Accordingly, HCC shall produce the Interim Defense Funding Agreement.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 20.1303
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 19 (N.Y. Sup. Ct. Apr. 21, 2016)
("This Court, however, notes that HCC further failed to offer sufficient support for its proposition that an insurer and insured share the requisite common interest in the context of an indemnity-only policy, as opposed to a liability policy which imposes a duty to defend upon the insurer. Additionally, at least one court has held that letters of defense counsel written for the purpose of apprising the insurer of the status of the case, not for the purpose of seeking or imparting legal advice, are not protected from disclosure by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 20.1303
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 19 (N.Y. Sup. Ct. Apr. 21, 2016)
("The Wagner Letter demanded that the insurers tender their policy limits so that the Paine Parties could engage in settlement discussions with the Plaintiffs in the Fox-Paine Litigation. Although the first paragraph of the letter provides an update on the settlement negotiations in the Fox-Paine Litigation and the second paragraph includes the amount for which outside counsel for the Paine Parties believes the underlying litigations would settle, the letter is foremost a demand letter for coverage. Notably, the Wagner Letter includes a recitation of case law requiring an insurer to accept reasonable settlement demands and stating that a dispute over coverage is not a defense to liability for a bad faith refusal of the insurer to settle. Accordingly, it cannot be held that the Wagner Letter was made in the furtherance of a common legal interest held by the insurers and the Paine Parties. Moreover, although the content and tone of the letter suggests future litigation, it is future litigation in which insurers and the Paine Parties would be adverse parties, not future litigation in which they would share a common legal interest.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 20.1303
Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)
(analyzing the common interest doctrine; "Bellao's [third party] testimony does not establish commonality in a litigation-related cause against a shared adversary, nor does the Court find upon review of the communications that they were made in furtherance of assisting such a cause. . . . Bellao testified that, at the time of her meeting with Swope Rodante in 2010, she knew she was not liable for any claims resulting from the accident. Bellao further testified that she had no claims against GEICO, and brought no claims at all relating to the accident. Moreover, Bellao was not involved in the accident, did not own the vehicle at issue in the accident, and, as of February 2010, she did not believe she was exposed to any liability for the accident. It appears that the extent of Bellao's involvement in Plaintiff's claim, aside from her awareness due to her personal relationship with Plaintiff, was merely her status as a named party on the GEICO insurance policy. This limited contractual interest does not, as matter of law, establish the type of commonality required by the exception, and, therefore, cannot be used to defeat waiver here.")

Case Date Jurisdiction State Cite Checked
2014-10-21 Federal FL

Chapter: 20.1303
Case Name: Progressive Casualty Ins. Co. v. FDIC, No. C12-4041-MWB, 2014 U.S. Dist. LEXIS 116909 (N.D. Iowa Aug. 22, 2014)
(analyzing the common interest doctrine in the insurance context; "[T]he doctrine applies only when the parties share a common legal interest. The relationship between Progressive and its reinsurers and broker is commercial and financial in nature, not legal. The information Progressive disclosed was in furtherance of its business relationship with the reinsurers and broker. The sole purpose of disclosure was to obtain or maintain reinsurance policies to cover Progressive's insurance risks. That is, of course, the commercial nature of the reinsurance industry."; "Progressive has not shown that its reinsurers are actively participating in Progressive's litigation and legal defense, or that they have any obligation to do so. There is no evidence establishing a joint strategy or legal enterprise, which is central to the common interest doctrine. The argument that 'if Progressive loses, so do its reinsurers' does not come close to establishing that the common interest doctrine applies (assuming, again, that Iowa law even recognizes that doctrine).")

Case Date Jurisdiction State Cite Checked
2014-08-22 Federal IA

Chapter: 20.1303
Case Name: Mitsui O.S.K. Lines Ltd. v. Seamaster Logistics, Inc., No. 12-mc-00275, 2013 U.S. Dist. LEXIS 9101, at *7 (S.D.N.Y. Jan. 18, 2013)
(finding that an insurance company and its insured could not rely on a common interest agreement to avoid waiver of the privilege; "The common interest doctrine does not provide for a privilege in itself; rather, it is an exception to the rules of waiver that apply when otherwise privileged information is shared with individuals who do not facially share in that privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal NY B 7/13

Chapter: 20.1303
Case Name: Mitsui O.S.K. Lines Ltd. v. Seamaster Logistics, Inc., No. 12-mc-00275, 2013 U.S. Dist. LEXIS 9101, at *5-6 (S.D.N.Y. Jan. 18, 2013)
(finding that an insurance company and its insured could not rely on a common interest agreement to avoid waiver of the privilege; "First, Toll's [non party] theory of a common interest is that AWAC [another non party], like Toll, likely hopes that any judgment against Seamaster and Summit is as small as possible. . . . This does not suggest a sufficient common legal interest. . . . Nor has Toll provided any indication that it has an agreement with AWAC to pursue any such common interest. On the second prong, there is no suggestion that the communication at issue regarding Toll's notice of claim or communications regarding the policy pertain to a common legal strategy being developed by AWAC and Toll.")

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal NY B 7/13

Chapter: 20.1303
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 602 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "[T]he parties are not aligned as to their coverage dispute before me and, as such, Plaintiffs' communications with coverage counsel as to the present case are not discoverable.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 20.1304
Case Name: Baxter International, Inc. v. AXA Versicherung, Case No. 11-cv-9131, 2016 U.S. Dist. LEXIS 172234 (N.D. Ill. Dec. 13, 2016)
("As this discussion illustrates, the holding and logic of Waste Management [Waste Management, Incorporated v. International Surplus Lines Insurance Company, 144 Ill. 2d 178, 579 N.E.2d 322, 161 Ill. Dec. 774 (Ill. 1991)] only extend to communications concerning matters with respect to which an insured has a duty to cooperate or a common interest with its insurer. . . . When interpreting Waste Management, courts consistently acknowledge this distinction and find that the attorney-client privilege protects communications about coverage issues with respect to which the insured and insurer have neither a duty to cooperate nor a common interest."; "The Court has reviewed in camera the Shapiro Memos and the cover emails. The Memos discuss extensively the underlying litigation, i.e., the Second Generation Litigation. Much of the content of the Memos has nothing to do with coverage."; "Thus, based on its in camera review, the Court has concluded that Baxter properly distinguished protected insurance coverage analysis from other information that is not protected under Waste Management.")

Case Date Jurisdiction State Cite Checked
2016-12-13 Federal IL

Chapter: 20.1304
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 693 (N.D. Ga. 2012)
(analyzing a bad faith claim against an insurance company by the insured's assignee; ultimately holding the plaintiff assignee could obtain communications with the insured's outside lawyer but not the insurance company's in-house lawyer, and could overcome any work product protection other than opinion work product protection; "The Court finds that the joint defense/common interest doctrine applies here, and Nationwide cannot claim the protection of the attorney-client privilege over its communications with Hawkins & Parnell regarding the defense of its insured in the underlying action unrelated to the issue of coverage. Such communications are therefore discoverable in this third-party bad faith action, and Nationwide's objection to the production of documents as being protected by the attorney-client privileged is overruled. However, the Court cannot reach the same conclusion regarding Nationwide's communications with its in-house claims counsel involving the rendering of legal services as there is no presumption that in-house counsel is employed to represent the interests of the insured as opposed to the insurer.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 9/13

Chapter: 20.1402
Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *19-20 (M.D. Fla. Sept. 12, 2014)
("That leaves the GTCR Group's argument that the terms of the joint defense agreement reflect an intent to prohibit one party from using joint communications unilaterally against another. In its previous ruling on the co-client exception, this Court considered the effect of a joint defense agreement in bankruptcy. Relying on In re Ginn-LA St. Lucie, Ltd., the Court explained that the attorney-client privilege must give way when necessary to promote an important public policy, and enforcing a joint defense in bankruptcy (in some instances) could offend public policy by thwarting a trustee's statutory duty to investigate claims for the benefit of creditors. Enforcing the joint defense agreement here, like in this case before, would offend public policy.")

Case Date Jurisdiction State Cite Checked
2014-09-12 Federal FL

Chapter: 20.1402
Case Name: In re Taproot Systems, Inc., Case No. 11-05255-8-JRL, Ch. 7, 2013 Bankr. LEXIS 2784, at *11 (E.D.N.C. July 11, 2013)
(analyzing the following situation: represented by the Silicon Valley Law Group ("SVLG"), Hina is pursuing litigation in California state court against two defendants (Taproot and Venture Funds) which had entered into a common defense agreement; when Taproot declared bankruptcy, its trustee retained as special counsel SVLG, and arranged for Hina to finance and manage the prosecution of potential claims against Venture Funds; relying on Taproot's status as a former client, the trustee sought the files of the two law firms which had been representing Taproot in the California suit before its bankruptcy; Venture Funds sought a protective order, arguing that those law firms also possessed its protected documents and communications, exchanged pursuant to the common interest agreement; ultimately concluding after an in camera review that the law firms' files contained protected documents, but allowing the trustee to turn the files over to SVLG; holding that SVLG (1) could use the documents "solely" against Venture Funds in the bankruptcy litigation and (2) may not turn the documents over to Hina or use them in the California lawsuit Hina apparently was still pursuing against Venture Funds)

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal NC B 4/14

Chapter: 20.1402
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *10 (E.D. Wis. July 10, 2013)
("According to the government (whose attorneys interviewed them), Peak and Perry were interviewed as cooperating witnesses on October 27, 2005, and mid-February 2006, respectively. . . . Perry had given Peak's and IOS's [company where the criminal defendants worked] attorneys information implicating the company and certain individual defendants in October 2005. . . . According to the government, Flynn agreed to cooperate on October 6, 2005. . . . Any joint defense certainly would have ended as of those dates.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 20.1402
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *53-54 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "[T]he best course shall be that Verrill Dana LLP conduct the deposition. Verrill Dana LLP's knowledge of Wagar's communication with Rider and Nixon Peabody shall not be tainted by any subsequent edification by those counsels, and should remain pristine. Anticipating that Wagar's deposition may disintegrate into a donnybrook as the litigators struggle and tussle over the nature of each and every inquiry, staining to parse the meaning of every question and every statement, the Court will direct that the deposition take place in the James T. Foley Courthouse, 445 Broadway, Albany, New York, in the lawyers' lounge located directly across from our Chambers, so that we can intercede at a moment[']s notice to quell the embers of any conflagration and manage this deposition with a modicum of decorum and efficiency. Wagar's deposition shall not last more than 7.5 hours.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 20.1403
Case Name: Borgwarner, Inc. v. Kuhlman Elec. Corp., No. 1-13-1824, 2014 Ill. App. LEXIS 847 (Ill. 1d App. Dec. 8, 2014)
(applying the Waste Management doctrine; "We find that, based on the holding of Waste Management, Inc., the plain language of the 1999 merger agreement's 'cooperation clause' created obligations requiring KEC and KAC to disclose to BorgWarner and Kuhlman relevant information and documents relating to the defense and settlement of the underlying tort actions, which BorgWarner and Kuhlman had the ultimate duty to satisfy. Similar to the 'cooperation clause' in the Waste Management, Inc. insurance policies, KEC and KAC's duty to cooperate, as outlined in section 11.5€ of the merger agreement, is broad and without limitation or qualification. Thus, we find that any expectation of attorney-client privilege was unreasonable. Likewise, because the requested materials were not prepared in anticipation of the instant lawsuit in which the discovery was sought, but rather in defense of the underlying tort actions against third-party adversaries, we find that the work-product doctrine was inapplicable."; "To the extent that KEC and KAC suggest that the holding of Waste Management, Inc. [Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 579 N.E.2d 322, 161 Ill. Dec. 774 (1991)] only applies to cases involving insurance companies, rather than other types of indemnitors such as BorgWarner and Kuhlman, we reject this contention.")

Case Date Jurisdiction State Cite Checked
2014-12-08 State IL

Chapter: 20.1403
Case Name: FDIC v. The Coleman Law Firm, Case No. 11 C 8823, 2014 U.S. Dist. LEXIS 102931 (N.D. Ill. July 29, 2014)
(analyzing the aggressive use of the common interest doctrine; explaining that the FDIC acting as receiver of a bank sought the retainer letter between the bank directors and officers and a law firm; also explaining that the FDIC argued that the bank and the directors and officers shared a common interest, which allowed the FDIC to obtain the documents; "Due to the common interest between GWSB and the D&Os relative to the Retainer Agreements, communications shared with GWSB and the D&OS regarding the negotiation and execution of the Retainer Agreements do not retain any attorney-client privilege and work product production that would otherwise apply to their discussions."; ordering the documents produced)

Case Date Jurisdiction State Cite Checked
2014-07-29 Federal IL

Chapter: 20.1403
Case Name: W. Side Salvage, Inc. v. RSUI Indem. Co., Case No. 3:13-cv-00363-MJR-PMF, 2013 U.S. Dist. LEXIS 166978 (S.D. Ill. Nov. 25, 2013)
(applying the Waste Management (Waste Mgmt., Inc. v. Int'l Surplus Lines Ins. Co., 579 N.E.2d 322 (Ill. 1991)) doctrine)

Case Date Jurisdiction State Cite Checked
2013-11-25 Federal IL B 5/14

Chapter: 20.1404
Case Name: Akagi v. Turin Housing Developments Fund Co., Inc., 13 Civ. 5258 (KPF), 2017 U.S. Dist. LEXIS 41321 (S.D.N.Y. March 22, 2017)
(finding that a joint defense agreement consent did not prevent a law firms disqualification, because it covered only later adversity rather than a concurrent conflict of interest; "But in New York, informed written consent, standing alone, does not cure an attorney's concurrent representation conflict of interest: interest could adversely affect the other, a court may conclude that 'such a belief would not be reasonable.'. . . Put another way: '[C]lient consent that is given is not valid if the objective test of a disinterested lawyer is not met.'"; "And even if the Court were to overlook these deficiencies in the Turin Defendants' brief, the crux of their argument fails: The JDA does not cure ALB's conflict of interest. The JDA's conflicts waiver begins: 'In the event of any litigation or other dispute between or among the Parties, each Party hereby waives any claim that counsel for any other Party is or should be disqualified from representing any other Party by reason of receipt of confidential, privileged or protected information or documents pursuant to this Agreement or any work performed or representation in furtherance of this Agreement.' That provision is not ambiguous. Pursuant to the JDA's conflicts waiver, the DE Defendants waived their right to object to Schneider Mitola's (or perhaps ALB's) representation on the grounds that it had received confidential information. But this consideration – an attorney's possession of a client's confidential information – is a factor courts consider when assessing the propriety of successive representations of adverse clients."; "In contrast, whether an attorney may concurrently represent adverse clients turns on whether he can demonstrate 'at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation.'. . . And by the JDA's terms, the DE Defendants did not waive their right to argue that Schneider Mitola (or perhaps ALB) should be disqualified on the basis of these concerns."; "Put simply, the De Defendants waived their right to object if Schneider Mitola sued them in a matter subsequent to the Federal Action (at least one the basis that Schneider Mitola possessed the DE Defendants' confidential information). The DE Defendants did not waive their right to object if Schneider Mitola concurrently sued and represented them."; "The Turin Defendants cite a number of federal and New York state-court cases wherein courts enforced waiver agreements that the Turin Defendants claim are similar to the JDA's. (Turin Opp. 9-10). As the DE Defendants note in their brief, all of these cases concerned successive-representation conflicts of interest. (DE Br. 7). See Estate of Hogarth v. Edgar Rice Burroughs, Inc., No. 00 Civ. 9569 (DLC), 2001 U.S. Dist. LEXIS 6294, 2001 WL 515025, at *5-6 (S.D.N.Y. May 15, 2001); GEM Holdco, LLC v. Changing World Techs., L.P., 7 N.Y.S. 3d 242 46 Misc. 3d 1207 [A], 2015 NY Slip Op 50014[U], (Table), 2015 WL 120843, at *4 (Sup. Ct.), aff'd in part, appeal dismissed in part sub nom. Gem Holdco, LLC v. Ridgeline Energy Servs., Inc., 130 A.D. 3d 506, 14 N.Y.S. 3d 14 (1st Dep't 2015); Grovick Properties, LLC v. 83-10 Astoria Boulevard, LLC, 120 A.D. 3d 471, 990 N.Y.S. 2d 601, 603-04 (2d Dep't 2014); St. Barnabas Hosp. v. N.Y. City Health & Hosps. Corp., 7 A.D. 3d 83, 775 N.Y.S. 2d 9, 10-11 (1st Dep't 2004). And more importantly, the Turin Defendants have not explained why this Court should read into the JDA's conflicts waiver a class of conflicts – concurrent representation conflicts – that the waiver expressly exempts."; "To be sure, even if the DE Defendants had consented to this conflict, the Court would still have good reason to disqualify ALB. It is unlikely that 'a reasonable lawyer' would believe that ALB could (i) defend the Turin Defendants and the DE Defendants in the Federal Action while (ii) suing DE on Turin's behalf in the State-Court Action. . . . But the Court need not reach this issue. The JDA unambiguously does not cure ALB's concurrent-representation conflict of interest.")

Case Date Jurisdiction State Cite Checked
2017-03-22 Federal NY

Chapter: 20.1404
Case Name: Price v. Charles Brown Charitable Remainder Unitrust Trust, Court of Appeals Case No. 74A01-1409-TR-401, 2015 Ind. App. LEXIS 171 (Ind. March 18, 2015)
(holding that a lawyer could not obtain dismissal of a malpractice action by a former client based on a joint defense agreement between the lawyer and the client; "In the JDA, Brown and Price did not explicitly waive their right to sue one another for alleged claims arising from their business relationships. To the contrary, the clear and unambiguous language of the JDA contemplates that Brown and Price might become adversaries as to the subject matter reflected in their shared information."; "Thus, according to the plain and ordinary meaning of the JDA's terms, the contract does not bar Brown, Charlotte, and the Trust's claims against Price. What the JDA does establish is that Brown and Price cannot use the materials shared pursuant to the JDA against each other, and that the exchange of materials does not limit any privileges or work-product protections that would otherwise apply."; "[T]here is nothing to show what evidence or communications are at issue, or that Brown, Charlotte, and the Trust could not prove their claims without disclosing communications that are privileged under the JDA. Brown and Price agreed that 'any materials or information obtained from a source other than one of the other parties' could be shared with other persons without violating the JDA or waiving the privileges established by the JDA as to other communications.")

Case Date Jurisdiction State Cite Checked
2015-03-18 State IN B 1/16

Chapter: 20.1404
Case Name: Berlinger v. Wells Fargo, N.A., Case No. 2:11-cv-459-FtM-29UAM, 2013 U.S. Dist. LEXIS 104914, at *5 (M.D. Fla. July 26, 2013)
(analyzing a common interest agreement; holding that the lawyer who had earlier represented defendant Wells Fargo in entering into a common interest agreement with an individual was not disqualified from continuing to represent the bank when adversity developed between the former common interest participants; "Berlinger first argues that under the relevant case law an attorney-client relationship formed between Rubin [defendant's lawyer] and himself as a result of the JDA. The Court disagrees. Co-defendants who enter into a joint defense agreement are represented by independent counsel, but agree to pursue a common defense strategy that necessitates the exchange of confidential communications made during defense strategy sessions. . . . However, a joint defense agreement does not necessarily create a duty of loyalty between the co-defendants and their counsel.")

Case Date Jurisdiction State Cite Checked
2013-07-26 Federal FL B 4/14

Chapter: 20.1404
Case Name: In re Shared Memory Graphics LLC, Misc. Dkt. 978, 2011 U.S. App. LEXIS 19414 (Fed. Cir. App. Sept. 22, 2011)
(issuing a writ of mandamus, and vacating disqualification of a law firm which had hired a lawyer who had earlier represented the common interest participant which had acquired confidential information under the common interest agreement from the law firm's current adversary Nintendo; noting that the common interest agreement contained the following prospective consent: "'Nothing contained in this Agrement has the effect of transforming outside or inside counsel for either party into counsel for the other party, or of creating any fiduciary or other express or implied duties between a party or its respective counsel and the other party of its respective counsel, other than the obligation to comply with the express terms of this Agreement, or of interfering with each lawyer's obligation to ethically and properly represent his or her own client. The parties expressly knowledge and agree that nothing in this Agreement, nor compliance with the terms of this Agreement by either party, shall be used as a basis to seek to disqualify the respective counsel of such party in any future litigation.'"; finding that the prospective consent preventing Nintendo from seeking the disqualifiction of the law firm which had hired Nintendo's previous common interest co-participant; "In view of these principles, the Agreement's terms clearly point away from the district court's conclusion that Cooper was not covered by the waiver provision. Nintendo agreed not to seek disqualification of then 'respective counsel of such party [i.e., AMD] in any future litigation.' Cooper [individual lawyer who had acquired confidential information from Nintendo while representing Nintendo's co-participant in an earlier common interest arrangement] was indisputably a 'respective counsel' of AMD, and, contrary to Nintendo's objections, the breadth and temporal scope of the waiver are broad enough to include 'any future litigation' between Nintendo and a prty employing, or represented by, Cooper.")

Case Date Jurisdiction State Cite Checked
2011-09-22 Federal

Chapter: 20.1404
Case Name: GTE North, Inc. v. Apache Prods. Co., No. 95 C 50197, 1996 U.S. Dist. LEXIS 1389 (N.D. Ill. Jan. 31, 1996)
(disqualifying a law firm based on one of its lawyer's previous representation of another participant in an environmental cost-sharing and information-sharing arrangement; "The Appleton Agreement also included confidentiality provisions which provided that all shared information between the members and their counsel shall 'be held in strict confidences by the receiving member and by all persons whom such confidential information is revealed by the receiving member.' The agreement further provided that the disclosure of such confidential information shall not constitute a waiver of the attorney-client or work-product privilege. In essence, the agreement resolved all liability and allocation issues between the members of the Appleton Committee."; "Like the Appleton Agreement, the Investigation Agreement contained several confidentiality provisions, which extended to the Cost Recovery Committee members themselves and all persons to whom such confidential information was transmitted by the members. The law firm of Hinshaw & Culbertson, which was also counsel for GTE, coordinated the investigation on behalf of GTE and the Cost Recovery Committee. During the investigation, Chrysler was represented by Faletto, who was, and remains, a member of the law firm Howard & Howard."; "GTE does not contend an express attorney-client relationship existed between itself and Faletto, rather, GTE contends that an implied attorney-client relationship existed by virtue of Faletto's involvement during the joint pre-suit investigation. Hence, the issue this court must decide is whether some sort of fiduciary relationship arose between them that would make GTE a 'former client' for purposes of disqualification under Rule 1.9."; "[T]he court finds that the substantial relationship test, as it has been applied under Canon 9, applies with equal efficacy under Rule 1.9, and where there is no direct or express attorney-client relationship, it requires a showing that the attorney in question was privy to confidential information."; "[T]he circumstances under which this confidential information was disclosed lead the court to conclude that a fiduciary relationship arose between GTE and Faletto for purposes of disqualification under Rule 1.9. The confidentiality provisions contained in both the Appleton Agreement and the Investigation Agreement clearly establish an intent that the shared information would remain confidential and would remain protected under the attorney-client privilege. The disclosures by GTE via its counsel to Faletto, Chrysler's counsel, were made with the expectation that they would not be disclosed to the targets of the investigation. Faletto's receipt of such disclosures and participation in meetings obligated him to refrain from reappearing on the opposite side of the same litigation to which such information would be highly pertinent.")

Case Date Jurisdiction State Cite Checked
1996-01-31 Federal IL