The common interest doctrine can avoid the normal waiver implications of separately represented clients sharing privileged communications. But the doctrine applies only in specific situations, and requires careful nurturing and support.
In Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., No. 13 Civ. 8997 (JPO) (GWG), 2015 U.S. Dist. LEXIS 69593 (S.D.N.Y. May 28, 2015), Judge Gorenstein assessed a common interest agreement between defendant trademark licensor and several licensees. Plaintiff claimed that the participants shared only a common commercial rather than a legal interest, but the court found it unnecessary to address that issue. Instead, the court focused on the doctrine’s requirement that common interest participants cooperate in pursuing a common legal strategy. After reviewing the withheld communications in camera, the court noted that the licensees provided the licensor “factual information” the licensor sought from them — but that “[t]here is no evidence that the licensees had any hand in formulating a joint legal strategy or that they had at any time agreed to pursue a common legal goal” with the licensor. Id. at *12.
Separately represented clients contemplating a common interest agreement should recognize this prerequisite to the doctrine’s applicability — and then make sure that their correspondence reflects the formulation and pursuit of a common legal strategy.