The common interest doctrine can sometimes avoid the normal waiver implications of separately represented clients sharing privileged communications — if they do so in pursuit of a common legal strategy. Some states do not recognize the doctrine, most courts apply it only when the participants are in or anticipate litigation, and courts disagree about many of the doctrine’s requirements.
In Bennett v. CIT Bank, N.A., Civ. A. No. 2:18-CV-00852-KOB, 2020 U.S. Dist. LEXIS 3528 (N.D. Ala. Jan. 9, 2020), the court addressed the waiver implications of a common interest participant’s disclosure to another participant (without a lawyer’s involvement). The court ultimately held that “privileged attorney-client communications can remain privileged when the client shares those communications outside the presence of counsel with a third party who shares a common legal interest.” Id. at *15. On the same day, the court in In re Generic Pharmaceuticals Pricing Antitrust Litigation, took the opposite position: “To be protected, ‘the communication must be shared with the attorney of the member of the community of interest’ as ‘[s]haring the communication directly with a member of the community may destroy the privilege.'” No. MDL 2724 16-MD-2724, 2020 U.S. Dist. LEXIS 4732, at *9 (E.D. Pa. Jan. 9, 2020) (alteration in original) (citing In re Teleglobe Commc’ns Corp. 493 F.3d 345, 364 (3d Cir. 2007)). This sort of stark and often dispositive judicial disagreement permeates many other common interest doctrine analyses.
Unfortunately, many corporations and their lawyers erroneously assume that they can contractually avoid the normal waiver implications of disclosing privileged communications to outsiders – and then immediately start sharing fragile privileged communications. Even if those common interest doctrine participants carefully check the law of the jurisdiction in which they share such communications, they often have no way of knowing where an adverse third party will claim a waiver — and therefore what court will apply its own common interest doctrine requirements.