Courts Take a Broad View of the Common Interest Doctrine

December 10, 2008

Under the common interest doctrine, separately represented clients with a common legal interest sometimes can exchange privileged communications without triggering a waiver. Unfortunately, common interest participants will not know if their effort to avoid a waiver has succeeded until some court later analyzes the context and language of their arrangement.

Several courts have taken a broad view of the common interest doctrine. In Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP, No. 03 Civ. 5560 (RMB)(HBO), 2008 U.S. Dist. LEXIS 77018 (S.D.N.Y. Oct. 2, 2008), the court held that an insurance company and its insured can share a common legal interest in defending the underlying claim, even if they have a dispute about coverage. One week later, another court confirmed that in the Seventh Circuit the common interest doctrine can apply even if the common interest participants do not anticipate litigation. Medallion Prods., Inc. v. McAlister, No. 06 C 2597, 2008 U.S. Dist. LEXIS 80550 (N.D. Ill. Oct. 9, 2008).

Companies hoping to avoid a waiver when disclosing protected documents to other companies should explore a common interest arrangement. Decisions taking a broad approach can provide some comfort, but unfortunately common interest participants will not learn until after they have shared protected communications whether a court will agree with them that the common interest doctrine applies.