Another Court Picks Its Own Effective Date for a Common Interest Agreement

July 21, 2010

Some lawyers believe that they and their clients can automatically preserve the attorney‑client privilege by entering into a common interest agreement with another represented client, and selecting the date on which the common interest agreement begins to protect their communications. Of course, that would be too good to be true.

In Beyond Systems, Inc. v. Kraft Foods, Inc., Civ. A. No. PJM-08-409, 2010 U.S. Dist. LEXIS 40423 (D. Md. Apr. 23, 2010), the court analyzed a plaintiff’s withholding of certain documents under a purported joint defense agreement with a third party defendant. Plaintiff’s president supplied an affidavit “stating that a common interest agreement was reached with [the other company] in 2002.” Id. at *3. However, the court noted that the affidavit merely indicated that the president “‘recall[ed] discussing an oral joint interest agreement'” in 2002, and “does not state that a common interest agreement was actually reached.” Id. at *4 (internal citation omitted). The court instead pointed to another affidavit, which indicated that communications regarding the plaintiff’s and third party defendant’s “‘joint interests against the same defendant generally occurred between December 1, 2004 and May 30, 2005.'” Id. at *5 (internal citation omitted). The court ultimately concluded that “to the extent [a] common interest agreement was created, the period of its applicability was December 1, 2004 through May 30, 2005.” Id.

Common interest participants cannot assure protection by agreeing among themselves that they have a common interest, and selecting the agreement’s effective date. A court might later find some other effective date – which of course means that privileged communications exchanged before the date selected by the court have waived privilege protection.