The common interest doctrine can allow separately represented clients to
avoid the normal privilege waiver implications of sharing privileged
communications. But the doctrine is unpredictable and therefore risky.
In Hempel v. Cydan Development, Inc., Case No. PX-18-3404, 2020
U.S. Dist. LEXIS 153208 (D. Md. Aug. 24, 2020), the court rejected
plaintiffs' common interest doctrine assertion. The court noted that "[i]n
the Fourth Circuit, the proponent of the common interest privilege must
produce evidence of an agreement between the individuals with the common
legal interest." Id. at *22. Acknowledging that "[w]hile a written
agreement is not required, and it is not necessary that 'both parties to
the communications at issue be co-parties in litigation,' . . . 'there must
be an agreement or a meeting of the minds." Id. Plaintiffs' common
interest doctrine argument failed because "[p]laintiffs have not met their
burden to demonstrate that the common interest privilege applies because
they have not produced evidence of an actual agreement with any third
parties" – and "the common interest privilege cannot be found to apply in
the absence of an agreement." Id. at *23.
Common interest participants must remember this threshold requirement.
About a month earlier, the court in Elvis Presley Enterprises, Inc. v. City of Memphis, No.
2:18-cv-02718, 2020 U.S. Dist. LEXIS 125534, at *24 (W.D. Tenn. July 16,
2020), found the common interest doctrine applicable because "the parties
entered into an oral common interest arrangement" – also providing
Privilege Points the rare opportunity to rely on a case involving Elvis