News & Analysis as of

Common-Interest Privilege

Purpose, privilege and duty – surviving the break down

by Dentons on

The recent decision of Sharpe v Grobbel [2017] NSWSC 1065 acts as a reminder for lawyers about their duty to claim privilege for clients even if they are no longer acting. It highlights the point in time in which common...more

Herding Cats: Making The Most Out Of A Joint Defense Group

Litigation today often involves multiple defendants facing a common adversary — whether it is patent litigation against the same patent holder or tort litigation against the same plaintiff. Multidefendant litigation can...more

Joint Defense Agreements Are Not Protected By The Attorney-Client Privilege

by Brooks Pierce on

Why would any lawyer think that his Joint Defense Agreement, entered into with a co-defendant, was protected from production by the attorney-client privilege? Well, the lawyer for one of the Defendants In AP Atlantic, Inc.,...more

What Type of "Common Interest" Satisfies the Common Interest Doctrine?

by McGuireWoods LLP on

Some lawyers incorrectly assume they can contractually assure that disclosing privileged communications to third parties does not waive the privilege – by entering into a "common interest" agreement. But nearly every month...more

One Year After Ambac: Sharing Information Among Deal Parties

by WilmerHale on

On June 9, 2016, the New York Court of Appeals issued its decision in Ambac Assurance Corp. v. Countrywide Home Loans Inc. and held that the common interest doctrine protects only communications among deal parties that are...more

2017 M&A Report

by WilmerHale on

In 2016, the number of reported M&A transactions worldwide dipped by 2%, from a record 34,838 deals in 2015 to 34,191, but still represented the second highest annual tally since 2000. Worldwide M&A deal value decreased 16%,...more

2016 Guidance from the North Carolina Court of Appeals on Attorney-Client Privilege Issues

by Ward and Smith, P.A. on

In civil litigation, parties frequently communicate with consultants, tax advisors, friends, family, and others concerning the subject matter of the litigation, and such communications raise issues regarding the possible...more

A Common Interest Agreement May Not Be Worth the Paper It’s Written On

by Wilson Elser on

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the...more

New York Decision Highlights Another Common Interest Doctrine Risk

by McGuireWoods LLP on

Under the common interest doctrine, separately represented clients may sometimes avoid waiving their fragile privilege protection when they disclose protected documents to each other. Nearly every court applies the doctrine...more

Evidence Law Litigation Update - February 2017

New York Court of Appeals Holds That the Common Interest Doctrine Applies Only to Litigation Matters. This year, in Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 80, 2016 N.Y. Lexis 1649 (N.Y. June 9, 2016), New...more

Privilege Claims Validated in Counterfeit Detection Dispute

In a recent decision, Magistrate Judge Kelley addressed the legitimacy of withholding third party communications under the common interest doctrine. The case involved plaintiff Crane Security Technologies, Inc. (“Crane”) –...more

D. Mass. Holds That Parties to an Arm’s-Length Negotiation Have Enough Common Interest to Maintain Privilege

During IP license negotiations, prudent negotiators will often avoid sharing privileged information about the IP to avoid waiving the attorney-client privilege. But in a recent District of Massachusetts case, the court upheld...more

Courts Continue to Insist that Common Interest Participants Anticipate Litigation

by McGuireWoods LLP on

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to...more

An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part...

by McGuireWoods LLP on

Common interest agreements and joint representations share many characteristics. Both types of arrangements involve lawyers engaging in protected communications with multiple clients. But they are structurally distinct. In...more

Southern District of New York Issues a Troublesome Corporate Privilege Case

by McGuireWoods LLP on

Most courts applying privilege principles automatically treat wholly-owned subsidiaries' employees as if they were the parent's employees. However, occasionally courts take a narrower view. In Au New Haven, LLC v. YKK...more

Are Common Interest Agreements Discoverable, and Why Does Anyone Care?

by McGuireWoods LLP on

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...more

Whistleblower’s Attorney’s Communications with Regulators Found to be Protected by Work Product Doctrine

A California Magistrate Judge in BofI Federal Bank v. Erhart ruled that a whistleblower’s attorney’s communications sent to federal regulators were protected by the attorney work product doctrine. No. 15-cv-2353 (S.D. Cal....more

Common Interest Privilege in Cross-Border Matters: Canada vs. U.S. Law

While many tenets concerning the protections afforded by privilege are similar in both Canada and the United States, there are key differences and treatment when it comes to settlement and common interest privilege, as some...more

Insurers Beware: Defending Bad Faith Claim May Lead to Waiver of Privileged Communications

by Cozen O'Connor on

On July 27, 2016, the United States District Court for South Carolina ordered an insurer to turn over its privileged communications. The Court explained that the insurer waived the protections afforded under the...more

The New York Court of Appeals Rejects Attempted Expansion of the Common Interest Exception to the Attorney Client Privilege

by Kelley Drye & Warren LLP on

Last month, the New York Court of Appeals issued a decision rejecting the attempted expansion of the common interest exception to the attorney-client privilege to include communications that did not involve pending or...more

The Common Interest Doctrine: Lessons on avoiding an inadvertent waiver of the attorney-client privilege

by Poyner Spruill LLP on

Most lawyers are familiar with the general rule that a client waives the attorney-client privilege by disclosing the privileged information to third parties. The common interest doctrine, however, provides an exception to...more

New York and North Carolina Take a Narrow Approach to Common Interest Doctrine

by Hinshaw & Culbertson LLP on

Brief Summary - The "common interest doctrine" generally protects attorney-client communications, even if such communications are disclosed to a third party, as long as the third party shares a common legal interest with...more

‘Sorry, But You Have Nothing in Common’: The New York Court of Appeals’ Recent Rejection of the ‘Common Interest Doctrine’...

by Reed Smith on

The New York Court of Appeals, the state’s highest court, recently rejected an attempt to apply the “common interest doctrine,” an exception to the general rule that communicating privileged information to a third party...more

New York's Highest Court Reverses Appellate Division, Reaffirms Litigation Requirement for Common-Interest Privilege

by BakerHostetler on

In a recent decision reversing the Appellate Division of the Supreme Court of New York, First Judicial Department, the New York Court of Appeals definitively held that the common-interest privilege may be used in New York...more

Court Takes a Liberal View of Privilege for Communications Between a Plaintiff and a Litigation Funder

by McGuireWoods LLP on

With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the...more

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