Some Courts Misapply the Common Interest Doctrine

April 27, 2016

The common interest doctrine can allow separately represented clients to share attorney-client privileged communications without waiving that very fragile protection. In contrast to privilege-protected documents, work product normally can be safely shared with any non-adverse third parties — as long as that disclosure does not increase the odds that the adversary can access the work product. In other words, avoiding waiver of the robust work product protection does not require the very demanding common interest doctrine standard.

In Breslow v. American Security Insurance Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133 (S.D. Fla. Feb. 19, 2016), a property owner who had filed a first party claim against an insurance company shared its work product with a property management company. The court correctly explained that in contrast to the fragile privilege, work product waiver focused on “to whom the disclosure is made” — and that such disclosure waived work product protection only if it “‘substantially increases the opportunity for potential adversaries to obtain the information.'” Id. at *21-22 (citation omitted). But then the court inexplicably also applied the common interest doctrine — concluding that a party may avoid waiving work product protection when “shar[ing] its work product with another party” only if (among other things) “the nature of their common interest [among the parties] is legal, and not solely commercial.” Id. at *25. The court ultimately found that the property owner had waived its work product protection.

Those sharing work product with non-adverse third parties should not have to meet the exacting common interest doctrine standards. Lawyers should be prepared to explain the very different waiver principles governing attorney-client privilege and the work product doctrine.