The Common-Interest Privilege May Prevent Waiver of Attorney-Client Privilege in Documents Shared Between Litigants and IP-Licensing Consultants

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When litigating a case, either as a plaintiff or a defendant, a party may have co-parties aligned with them in the litigation, that is, fellow plaintiffs or defendants litigating against a common opponent or opponents. Often, these co-parties will share confidential legal advice from their attorneys under a common-interest or joint-defense agreement in an effort to avoid waiving the attorney-client privilege. Otherwise, disclosing such information to a third party might cause such information to be subject to discovery by the opponent. But what happens when you share information from your attorneys with an outside IP licensing firm? Is that information discoverable by the opponent?

The common-interest or joint-defense privilege can typically be invoked by co-litigants with a common opponent. The scope of the privilege has evolved from a narrow exception covering criminal co-defendants to today's broad doctrine applicable to communications between both civil and criminal co-litigants, as well as nonparties with common legal interests. In Xerox Corp. v. Google Inc., No. 10-136 (D. Del. Aug. 1, 2011)1 the United States District Court for the District of Delaware held that communications between a patent owner and an outside IP-licensing firm were entitled to protection under the common-interest privilege.

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