Courts sometimes wrestle with common interest agreements' discoverability.

In GeoMetWatch Corp. v. Hall, the court noted that "[c]ases that have addressed whether joint-defense agreements are discoverable or protected by the joint-defense privilege run the gamut." Case No. 1:14-cv-60-JNP-PMW, 2016 U.S. Dist. LEXIS 91274, at *5 (D. Utah July 12, 2016). The court cited decisions holding "that joint-defense agreements are indeed protected by the joint-defense privilege," but also noted that "[o]ther courts have found that joint-defense agreements are not protected by that privilege." Id. at *5-6. The court ultimately concluded that "the joint defense agreements are not relevant to the parties' respective claims and/or defenses" in the case – which involved an indemnification dispute. Id. at *7.

Courts addressing the common interest doctrine rarely if ever point to the pertinent common interest agreements' provisions. Instead, courts look at the context, not the agreements. Common interest participants should remember that they cannot automatically contract into privilege protection, and that about half of common interest agreements fail.