Courts Assess The Common Interest Doctrine’s Applicability To Work Product: Part II

May 15, 2019

Last week’s Privilege Point described a case erroneously applying the demanding common interest doctrine to companies’ sharing of work product. In stark contrast to the privilege, work product protection holders waive that robust protection only by disclosing it to adversaries or conduits to adversaries. Fortunately most courts understand that friendly litigants or would-be litigants (represented or not) may thus safely share work product without waiving that hardy protection.

In Washington Coalition for Open Government v. Pierce County, No. 50718-8-II, 2019 Wash. App. LEXIS 392 (Wash. Ct. App. Feb. 20, 2019), the court properly rejected plaintiffs’ attempt to apply the common interest doctrine to work product disclosures. The court explained that plaintiff “confuses waiver under the work product doctrine with waiver of attorney-client privilege.” Id. at *13. The court correctly noted that plaintiff “fails to show that the County’s disclosure of work product [to friendly third parties] created a significant likelihood that an adversary or potential adversary . . . would obtain these documents.” Id. at *14. The court then noted that plaintiff relied on a 2012 Ninth Circuit case “to argue that a shared desire for the same outcome in a legal matter was insufficient to create a common interest agreement between the County [and friendly third parties].” Id. The court bluntly explained that the Ninth Circuit case was “inapplicable because that case involved waiver of the attorney-client privilege, not the work product doctrine.” Id. at *15.

Courts’ confusion about the common interest doctrine’s inapplicability to work product can result in seriously flawed decisions. Ironically, most courts’ limitation of the common interest doctrine’s reach to participants who are in or anticipate litigation means that many such participants do not need to rely on the demanding common interest doctrine – because they are sharing work product, not fragile privileged communications.