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.