Adversaries on Some Litigation Issues Might Share a "Common Interest" on Other Issues

October 27, 2021

The unpredictable and frequently rejected common interest doctrine can sometimes avoid what would otherwise be a waiver when separately represented litigants share privileged communications or documents. Many clients and even lawyers erroneously believe they automatically can assure such a non-waiver benefit simply by entering into a common interest agreement. But when carefully utilized, the common interest doctrine can protect some communications that would otherwise seem vulnerable to discovery.

In Miller v. Boilermaker-Blacksmith National Pension Trust, No. 2:20-CV-317-RMP, 2021 U.S. Dist. LEXIS 129550 (E.D. Wash. July 12, 2021), PSF Industries' former owner Stanley Miller sought declaratory relief affirming that loan payments he received from PSF were not intended to avoid PSF's withdrawal liabililty under a federal statute. Defendant Pension Trust argued that the loan payments were intended to defraud the fund and other creditors. Defendant sought communications between Miller and PSF employees, but Miller asserted common interest protection. The court understandably rejected Miller's common interest claim for "communications or correspondence related to loans from Miller to PSF and payments or repayment of the same" – implicitly acknowledging that Miller and PSF were adversaries in connection with the loan and its repayment. Id. at *4. But the court properly extended common interest protection to communications between Miller and PSF "made in furtherance of the purported joint interest in defending against withdrawal liability." Id. (citation omitted). In other words, Miller and the company he formerly owned: (1) did not share a common interest in connection with PSF's loan repayments to Miller; but (2) did share a common interest in resisting defendant's argument that the payments violated a federal statute.

Lawyers must remember that they cannot assure common interest doctrine protection simply by entering into an agreement. That non-waiver protection can require a subtle analysis – sometimes protecting certain communications among the participants, but not other communications.

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