Last week’s Privilege Point emphasized the difficulty of successfully asserting the common interest doctrine’s application. But in the right circumstances, even litigation adversaries can successfully protect some of their communications.
In Ronduen v. GEO Group Inc., Case No. 5:23-cv-00481-JGB-SHK, 2025 U.S. Dist. LEXIS 32984 (C.D. Cal. Feb. 7, 2025), California detention center prisoners sued the center’s operator GEO for injuries allegedly caused by the spraying of a disinfectant by Spartan Chemical, which installed the dispensing equipment and ensured the right disinfectant ratio. Not surprisingly, GEO filed a third-party action against Spartan. The wise court understandably held that the common interest doctrine: (1) COULD protect communications between GEO and Spartan supporting the argument that the prisoners’ injuries “could not have been caused by [the disinfectant] no matter what the dilution ratio” (id. at *31 (emphasis in original)); (2) COULD NOT protect their communications about possible injuries caused “under a particular dilution ratio or according to a specific use” (id. at *32); and (3) COULD protect their communications about “limiting [the prisoners’] damages” and “defeating class certification.” Id. at *32-33.
The common interest doctrine sometimes requires courts to use a judicial scalpel to carefully analyze privilege protection for different portions of a single communication.