Every lawyer (hopefully) knows what solicitor-client privilege is. But many lawyers may have little understanding of what “common interest privilege” is. Since this privilege can mean the difference between creating a revolutionary document and keeping that document out of the hands of an adversary, it is worth mastering the elements and nuances of this particular privilege. Privilege of common interest. If we look at the logic one step beyond the common defence privilege, we come to the heart of this article: the common interest privilege allows a group of clients and their lawyers to communicate confidentially with another group of clients and their separate lawyer – but this time without the requirement of active litigation (at least in most courts).11 The validity of the exercise of a privilege of common interest does not can be considered as long as a dispute has not arisen. But so-called privileged communications may take place, or even be expected, well in advance of such disputes.12 Communications are often neither purely legal nor purely legal in nature. The chaotic nature of the real world requires courts to determine whether the legal nature of communications is significant enough to trigger protection. The majority view appears to be that the legal nature of the disclosure must take precedence over other interests, such as commercial or personal interests, for the privilege to apply.23 The minority view takes a broader view of privilege and does not require disclosure to be primarily legal interests.24 24. See Restatement (third) of the L. Applicable Laws.
§ 76 cmt. e (Am. L. Inst. 2000) (privilege applies to “legal, factual or strategic” communications); Hewlett-Packard Co. v Bausch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D. Cal.
1987) (overview to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997) (agreement). In summary, solicitor-client privilege and the common interest doctrine may overlap in litigation and are related in some sense, but practitioners should be careful not to mix these separate lines of jurisprudence. In particular, in describing the application of the common interest privilege, the Third Judicial District stated that it should not be used “as an after-the-fact justification for inappropriate disclosures by a client.” This remark was relevant to a recent decision in the Southern District of New York, which found that common interest privilege did not apply to communications between an employee`s lawyer and his company`s lawyers, because the employee could not prove that he and the company had agreed on a common interest or legal strategy at the time of the disclosure. This article explores the basics of privilege of common interest. This article explores some situations where the common interest privilege is likely to occur, including some scenarios that are particularly relevant to this audience, such as product defect litigation and insurance disputes. This article will also discuss some practical tips that could help lawyers protect the common interest privilege and avoid a potential waiver. Certain issues, such as whether the defence lawyer is independently appointed by the insurer,33 who paid the lawyer, and whether the insurer reserved the rights of the defence,34 may determine whether the insurer and the insured had a common interest, which allowed the insurer to discover the insured`s procedural documents. When and to what extent insurers are entitled to this information varies from jurisdiction to jurisdiction. (The complexity of the tripartite relationship between the insurer, the insured and the defence lawyer is far beyond the scope of this article.) Parties who have a common interest in potential civil or criminal proceedings, but who are represented by separate lawyers, often rely on common interest privilege to protect their communications with each other and with their lawyers while trying to understand the government`s strategy and prepare their defence. Common interest privilege is “an extension of solicitor-client privilege.” “It serves to protect the confidentiality of communications transmitted from one party to counsel for another party where a joint defence effort or strategy has been decided upon and implemented by the parties and their respective counsel.” A claim of privilege under the common interest rule “requires proof that the disclosure in question was confidential and that the client reasonably understood that it was given.” As regards the question of what types of legal interests are eligible, compliance with certain laws is a simple example of a purely legal interest.25 Other situations where legal and commercial interests are closely linked are more specific. The more imminent a legal dispute is, the more likely it is that the lawyer`s advice will be primarily legal in nature.
16. See, for example: JP Morgan Chase, 2007 WL 2363311, at *4 (“Prior to the merger, these organizations were opposite sides of a business transaction. From a commercial and legal point of view, the interests of the merging parties were opposed. They had no common interest, and in fact their interests were in conflict – each company wanted to get the best deal from the other company, and to the extent that one achieved its goal, the other suffered. »); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 524–25 (D. Conn. 1976) (“In this matter, the parties were generally not interested, but hostile and negotiated a commercial transaction between them on terms of dependency.”). How does this common interest privilege relate to the “common interest doctrine” in the insurer and insurance context? In answering this question, it is important to distinguish between the common interest privilege, which is the subject of this article, and the common interest doctrine, which often arises in cover conflicts.