Decision Highlights Jurisdictions’ Different Approaches to the Common Interest Doctrine

December 9, 2009

The common interest doctrine can allow separately represented clients to share privileged communications in pursuing a joint legal strategy — without waiving the privilege. However, jurisdictions take dramatically different approaches to this basic principle.

In In re Sandwich Islands Distilling Corp., Ch. 7 Case No. 07-01029, 2009 Bankr. LEXIS 3009 (Bankr. D. Haw. Sept. 21, 2009), the court analyzed e-mails that a debtor claimed to be protected by the common interest doctrine protection. The court noted that the Hawaii version of the common interest doctrine was “substantially narrower than the federal version,” because under Hawaiian law the protection is limited to “pending litigation” (so any pre-litigation communications did not deserve the protection). Id. at *5, *6. After noting that most courts apply federal law to “privilege questions arising in examinations under Fed. R. Bankr. P. 2004,” the court applied the federal version of the common interest doctrine rather than the Hawaii version — and protected the e-mails. Id. at *7.

Lawyers should not assume that there is some national consensus formulation of privilege principles such as the common interest doctrine.