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