March 1, 2023
The common interest doctrine can sometimes protect from the otherwise harsh privilege waiver impact normally triggered by the sharing of privileged communications among separately represented clients. Courts take widely varying views of this unpredictable doctrine, and about half of common interest doctrine assertions fail. Most courts require that each common interest participant has a lawyer. Some courts go beyond that.
In Ali v. Worldwide Language Resources, LLC, Nos. 5:20-CV-00638-D & -00644-D, 2022 U.S. Dist. LEXIS 201861, at *4-5 (E.D.N.C. Nov. 4, 2022), the court bluntly recognized that the common interest doctrine "serves as a narrow exception to the waiver rule only — it does not create a new privilege out of thin air." The court then recognized a demanding requirement that not all courts impose: "[t]he presence of counsel is key — several federal courts have held that statements made among co-parties absent an attorney do not qualify for the common interest rule’s protection at all." Id. at *5-6. Just a few weeks later, the Southern District of New York took a broader view of the doctrine. In Smith v. Pergola 36 LLC, No. 1:22-cv-4082 (LJL), 2022 U.S. Dist. LEXIS 229914, at *22 (S.D.N.Y. Dec. 21, 2022), the court held "an attorney need not be present for the communications" for the common interest doctrine to apply.
Stark disagreements like this can cause problems for lawyers who do not know where some adversary will challenge their common interest agreement's effectiveness — it may be in some far-off court that takes a narrower view than the jurisdiction where the participants drafted and signed their common interest agreement. Next week's Privilege Point will address a frightening scenario in which participants may lose more than their privilege protection — they may lose their lawyer.