As previous Privilege Points have noted, (1) entering into a common interest agreement does not assure protection from waiver – the law determines that; and (2) lawyers should always consider both attorney-client privilege and work product protection.
In Gamon v. Shriners Hospitals for Children, Case No. 3:23-cv-00216-IM, 2026 U.S. Dist. LEXIS 44692 (D. Or. Mar. 3, 2026), the same lawyer represented multiple former employees separately suing their former employer hospital for religious discrimination. The hospital sought communications between two of the plaintiffs. The court rejected one plaintiff’s common interest doctrine privilege claim, noting: (1) plaintiff’s “few conclusory sentences” did not substantiate a common interest agreement; (2) no lawyer was involved in the communications; and (3) plaintiff had not proven that she was acting as her lawyer’s agent for those communications. Id. at *9-10.
The opinion did not address the almost certainly applicable and much more robust work product doctrine that presumably would cover litigation-related communications among plaintiffs suing the same defendant about the same issue involved in their nearly simultaneous firings.