Courts Address “Common Interest” Nuances: Part I

November 15, 2006

Many lawyers have a vague understanding that they and their clients can share privileged communications with other companies and their lawyers, as long as the companies share a “common interest.” Courts have severely curtailed the “common interest” doctrine ‑‑ applying it only when companies which are in or which anticipate litigation prepare a joint strategy. Two recent cases decided one day apart explored two interesting nuances.

In United States v. Mikhel, 2006 WL 2466978, at *1 (9th Cir., Aug. 25, 2006) (unpublished opinion), the Ninth Circuit adopted the majority view on the common interest doctrine’s applicability to communications directly between the clients: “Even if we assume that the joint-defense privilege shields some communications between co‑defendants made outside of counsel’s presence, it would apply only if the communications were made pursuant to specific instructions by the lawyer.”

Lawyers must remember that the common interest doctrine is not some panacea allowing their clients to avoid waiver when communicating with allies. Next week’s Privilege Point provides some good news about another nuance.