Under the common interest doctrine, separately represented clients can sometimes avoid waiving the privilege when sharing privileged communications with others who have a common legal interest. However, the lack of certainty that the doctrine will apply should give every corporation pause before assuming that the doctrine will protect such sharing.
In Elan Microelectronics Corp. v. Apple, Inc., Case No. C 09-01531 RS (PSG), 2011 U.S. Dist. LEXIS 87989 (N.D. Cal. Aug. 8, 2011), the court handling a patent case held that a manufacturer and a customer did not have a sufficiently common interest to avoid waiving the privilege when they shared privileged communications. Among other things, the court noted that the companies shared the documents before there was a “suit or even a threat of a suit against any of the parties” involved. Id. at *17. Two days later, the District of Nebraska acknowledged that the United States government and a disability rights plaintiff could participate in a common interest agreement. Argenyi v. Creighton Univ., No. 8:09CV341, 2011 U.S. Dist. LEXIS 89194 (D. Neb. Aug. 10, 2011). However, the court held that “documents exchanged between Plaintiff and the United States before the United States began its investigation into Plaintiff’s claims cannot be said to be protected by the common interest doctrine” because “[a]t the time of initial contact” the United States was not investigating defendant Creighton and therefore could not participate in a common interest agreement. Id. at *8.
In both of these cases, the result of the court’s denial of common interest doctrine protection meant that the participants had waived their attorney‑client privilege protection. Of course, the waiver had already occurred before any court addressed the protection – which highlights the inherent risks of common interest agreements.