Southern District of New York Takes a Narrow View of the Privilege Protection in the Joint Representation and Common Interest Contexts

May 4, 2011

Every court recognizes that “legal-related” communications within a joint representation normally deserve privilege protection. Courts also apply privilege protection when separately represented clients communicate about legal matters in which they have a common legal interest, and have entered into a joint defense/common interest agreement.

However, some courts seem surprisingly hostile to privilege protection in both of these contexts. In University Sports Publications Co. v. Playmakers Media Co., No. 09 Civ. 8206 (RJH) (DF), 2011 U.S. Dist. LEXIS 30675 (S.D.N.Y. Mar. 21, 2011), Magistrate Judge Freeman dealt with an investigation undertaken by Dewey & LeBoeuf into an accusation that an employee of a service provider stole confidential information from its client University Sports, and gave it to University Sports’ competitor. The service provider and University Sports were owned by brothers, and jointly hired Dewey & LeBoeuf to conduct an investigation into the alleged theft. Surprisingly, Judge Freeman found that the privilege did not protect a Dewey & LeBoeuf lawyer’s interview of the alleged thief, because representatives of his employer (the service provider) attended the interview. Judge Freeman explained that the service provider and University Sports’ interests were possibly adverse, “regardless of whether the two companies may have jointly retained counsel to assist in investigating the alleged theft.” Id. at *16. She also found that the two companies shared only a common “business interest” in assuring the security of University Sports’ confidential information, and therefore could not protect the privilege under a common interest agreement. Id.

Courts normally do not “look behind” a joint representation in a situation like this. Most courts protect communications once they learn that two companies have hired the same law firm to represent them in a matter. Similarly, most courts would not question a common legal interest in this setting. Judge Freeman also took a very narrow view of the work product doctrine, which will be discussed in next week’s Privilege Point.