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
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
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
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
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
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
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
The common interest doctrine can sometimes allow separately represented clients to avoid the normal waiver implications of disclosing privileged communications to each other. However, courts take widely varying views of the...more
The common interest doctrine can allow separately represented clients to share attorney-client privileged communications without waiving that very fragile protection. In contrast to privilege-protected documents, work product...more
Courts recognizing the common interest doctrine limit its non-waiver effect to participants' common legal rather than financial interests. It can be difficult to apply this abstract principle to communications between a...more
The common interest doctrine can avoid the normal waiver implications of separately represented clients sharing privileged communications. But the doctrine applies only in specific situations, and requires careful nurturing...more