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Court Issues a Double-Barreled Rejection of Litigants’ Common Interest Doctrine Claims

The common interest doctrine can sometimes protect as privileged communications between separately represented clients. But litigants seeking the doctrine’s protection face many hurdles and often fail....more

Clients Lose Some, Win Some – Two Courts Assess the Common Interest Doctrine on Same Day: Part II

Last week’s Privilege Point emphasized the difficulty of successfully asserting the common interest doctrine’s application. But in the right circumstances, even litigation adversaries can successfully protect some of their...more

Did S.D.N.Y. Mean to Apply Expansive Common Interest Doctrine?

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...more

State Court Takes a Narrow View of the Common Interest Doctrine

Under the common interest doctrine, separately represented clients may sometimes contractually avoid the normal waiver impact of disclosing privileged communications to each other. But federal and state courts take widely...more

Some Courts Understand Work Product Waiver, and Some Don’t

Unlike the very fragile attorney-client privilege (which can be waived even by disclosure to family members), the more robust work product doctrine protection survives disclosure to friendly third parties....more

The Common Interest Doctrine — Courts' Disagreements and a Warning: Part II

Last week's Privilege Point described two courts taking the opposite position on whether the common interest doctrine could protect from waiver otherwise privileged communications among common interest agreement participants...more

The Common Interest Doctrine — Courts' Disagreements and a Warning: Part I

The common interest doctrine can sometimes protect from the otherwise harsh privilege waiver impact normally triggered by the sharing of privileged communications among separately represented clients. Courts take widely...more

Texas Courts' Contradictory Approach to the Common Interest Doctrine

The common interest doctrine sometimes allows separately represented clients to avoid the normal privilege waiver implications when sharing their privileged communications. Unfortunately for lawyers hoping for certainty,...more

How Does the Common Interest Doctrine Work in the Intellectual Property Context?

The common interest doctrine sometimes prevents what would be a waiver when separately represented clients disclose privileged communications to each other. But the doctrine normally requires an identical legal interest, not...more

Northern District of California Court Repeats Commonly Articulated Incorrect but Harmless Statement About Common Interest Doctrine

The common interest doctrine can sometimes protect communications between separately represented clients that would otherwise trigger a waiver – if those clients share an identical (or nearly identical, in some courts) legal...more

Federal Court Coins a Useful Common Interest Doctrine Phrase: "Rooting Interest"

The widely misunderstood common interest doctrine occasionally allows separately represented clients to avoid the normal disastrous waiver implications of sharing privileged communications. Among other requirements, most...more

The Privilege Always Protects Communications Among Jointly Represented Corporate Affiliates, Right?

Corporate parents' in-house lawyers' joint representations of the parent and its wholly-owned subsidiaries should cinch their communications' attorney-client privilege protection. Additional grounds for such privilege...more

Adversaries on Some Litigation Issues Might Share a "Common Interest" on Other Issues

The unpredictable and frequently rejected common interest doctrine can sometimes avoid what would otherwise be a waiver when separately represented litigants share privileged communications or documents. Many clients and even...more

Common Interest Doctrine Participants Must Agree on the Doctrine's Applicability

The common interest doctrine can allow separately represented clients to avoid the normal privilege waiver implications of sharing privileged communications. But the doctrine is unpredictable and therefore risky....more

California Federal Court Takes a Narrow View of the Common Interest Doctrine

The common interest doctrine sometimes allows separately represented parties to avoid the normal waiver implications of sharing privileged communications -- but some courts do not recognize the doctrine, and other courts take...more

Delaware Courts Address Common Interest Doctrine Issue: Part II

Last week’s Privilege Point described a favorable Delaware state court decision finding that a post-reorganization trust and its largest stakeholder could rely on the common interest doctrine to protect their communications –...more

Delaware Courts Address Common Interest Doctrine Issue: Part I

The common interest doctrine occasionally allows separately represented clients to share privileged communications without waiving that fragile protection. Nearly all courts require that the common interest doctrine...more

More Courts Disagree About Common Interest Doctrine Requirements

The common interest doctrine can sometimes avoid the normal waiver implications of separately represented clients sharing privileged communications -- if they do so in pursuit of a common legal strategy. Some states do not...more

Do Indemnitees And Indemnitors Always Share A Common Interest?

Last week's Privilege Point described a court's somewhat surprisingly narrow view of when counterparties reasonably anticipate litigation. Lawson v. Spirit AeroSystems, Inc., Case No. 18-1100-EFM-ADM, 2019 U.S. Dist. LEXIS...more

Several Courts Consider Common Interest Doctrine Requirements

Under certain conditions, the common interest doctrine can avoid what would otherwise be a waiver when separately represented clients share privileged communications to support a common legal strategy. As tempting as it would...more

Courts Assess The Common Interest Doctrine's Applicability To Work Product: Part II

In Washington Coalition for Open Government v. Pierce County, No. 50718-8-II, 2019 Wash. App. LEXIS 392 (Wash. Ct. App. Feb. 20, 2019), the court properly rejected plaintiffs' attempt to apply the common interest doctrine to...more

Courts Take Expansive View of the Common Interest Doctrine

Under the common interest doctrine, separately represented clients can avoid the normal waiver implications of disclosing privileged communications to third parties. Unfortunately, some courts do not recognize the doctrine,...more

Courts Continue to Diverge on the Common Interest Doctrine's Dependence on Anticipated Litigation

Most courts apply the common interest doctrine only in litigation-related circumstances, although a few courts extend the doctrine to transactional contexts. In BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank...more

Court Rejects the Common Interest Doctrine's Applicability for Yet Another Reason

The common interest doctrine can avoid the normal waiver implications of disclosing privileged communications to third parties. But some courts do not recognize the doctrine at all, and most courts impose various requirements...more

Court Says Anticipated Litigation Unnecessary to Support Common Interest Doctrine Protection

Despite litigants' and bar groups' valiant efforts to expand common interest doctrine protection to transactional settings, most courts limit that doctrine's protection to ongoing or anticipated litigation contexts. However,...more

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