Under the widely recognized common interest doctrine, separately represented clients may sometimes contractually avoid the otherwise inevitable privilege waiver when sharing privileged communications. As explained previously in Privilege Points, some courts apply the doctrine only during pending litigation, and nearly every court seems to at least require anticipated litigation. But occasionally a court appears to articulate a far more expansive approach.

In Alta Partners, LLC v. Getty Images Holdings, Inc., No. 22-cv-8916 (JSR), 2023 U.S. Dist. LEXIS 156520 (S.D.N.Y. Sept. 5, 2023), prominent Southern District of New York Judge Rakoff issued a relatively short opinion on a number of topics. Judge Rakoff first understandably held that defendant Getty Images could not apply the common interest doctrine protection for its communications with its shareholders — because Getty only “shared a commercial or financial, rather than legal, interest” with its shareholders. Id. at *3. But then Judge Rakoff “accept[ed] Getty’s asserted common interest privilege with . . . Getty’s counter-party in its business combination agreement . . . and that counter-party’s sponsor.” Id. Although the opinion does not explain how a counter-party could have a common legal interest with Getty, perhaps more notable was the absence of any reference to litigation or anticipated litigation.

Some courts have hinted that the common interest doctrine can assure continued privilege protection among separately represented clients in a business context —  with no anticipated litigation on the horizon. But courts have not started clearly adopting such a favorable approach — despite several bar groups’ and commentators’ efforts to push the law in that direction. Judge Rakoff’s enigmatic opinion probably won’t help much, but for some lawyers hope springs eternal.