Delaware Bankruptcy Court Sheds Light on The Common Interest Doctrine Preventing The Waiver of Privileged Communications

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The United States Bankruptcy Court for the District of Delaware (the "Delaware Bankruptcy Court"), recently in In re Leslie Controls, Inc., Bankr. D. Del., Case No. 10-12199, expounded on whether attorney-client and attorney work-product privileged documents remained protected from discovery under the common interest doctrine. The common interest doctrine permits counsel representing different clients with similar legal interests to share information without having to disclose that information to others. That is, the common interest doctrine expands the attorney-client privilege and attorney work-product doctrine under certain circumstances because the sharing of such privileged communications does not constitute a waiver of the privilege. Specifically, in Leslie Controls, the Delaware Bankruptcy Court addressed whether 26 communications between a Debtor and its counsel that were shared prior to the bankruptcy petition with an ad-hoc committee of asbestos plaintiffs (the "Ad Hoc Committee") and the Debtor's proposed future claimants' representative (the "Pre-Petition FCR") remain protected from discovery under the common interest doctrine. The Delaware Bankruptcy Court held that all of the communications were protected from discovery.

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