Here are some tips to increase the likelihood that common defence will protect privileges. A party wishing to invoke the common defence privilege must prove the following: The case law differs in the exact sense of the concept of “spouse”. At the narrower end of the spectrum, some cases suggest that a common interest means an identical interest.13 Other cases, however, suggest that slightly less than identical interests may be sufficient to trigger privilege.14 Indeed, some courts at the most liberal end of the spectrum have recognized that the common interest privilege may apply even if the parties: who invoke privilege have, in some respects, conflicting interests.15 Co-defendants in litigation often have a common interest in defending the plaintiff`s claims. Especially in situations where co-defendants don`t try to blame each other, courts have recognized that defendants can defend themselves together and share trust and secrets (as well as costs). In this context, although communication between defendants is not protected in subsequent litigation between them, communication would be protected against disclosure by plaintiffs. For lawyers, this includes managing risks such as obligations to non-clients who are parties to the joint defence agreement. It is recommended that any joint defence agreement contain provisions stipulating that it must not be used as a basis for attempting to challenge another defence lawyer. On the other hand, the insurer and the insured could, conversely, jointly maintain that their common interest vis-à-vis the third-party plaintiff constitutes a shield against the discovery by that applicant of communications between the insurer, the insured and his legal counsel. Thus, the doctrine of the common good can be invoked both offensively (like the sword of the insurer against the insured) and defensively (as a protective shield of the insurer and the insured jointly against the third party plaintiff). Solicitor-client privilege. Readers of this article will be familiar with the basic elements of solicitor-client privilege: confidential communications between a lawyer and a client for the purpose of obtaining or obtaining legal advice are generally preferred over disclosure in litigation.1 This privilege is widely regarded as the oldest and most venerable of all privileges.
and the courts respect the limits of solicitor-client privilege when it comes to disclosure disputes.2 Every lawyer (hopefully) knows what solicitor-client privilege is. But many lawyers may have little understanding of what “common interest privilege” is. Since this privilege can mean the difference between creating a revolutionary document and keeping that document out of the hands of an adversary, it is worth mastering the elements and nuances of this particular privilege. In particular, in most jurisdictions, parties do not need to reasonably foresee litigation to qualify for the common interest privilege.26 Indeed, “reasonable anticipation of litigation” is usually an element of the work product doctrine, not solicitor-client privilege. A notable exception, however, is New York, which recognizes common interest privilege only when litigation can reasonably be expected.27 Of course, not all cases in which clients and their lawyers seek to share information with others and their lawyers involve litigation. In order to accommodate this possibility, many courts have extended the principles of the common defence privilege to the extrajudicial context. The purpose of this email is to recall our discussions yesterday on the common interests of our customers on FIFA-related issues. We will work together in accordance with an agreement of common interest. My understanding is that there will be conditions similar to the last one we had, and we will be able to know if we have it in writing, specific details, etc.
when you land. It has been effective since yesterday. [12] 13. With respect to JP Morgan Chase & Co. Sec. Litig., No. 1783, 2007 WL 2363311, at *4 (N.D. Ill. 13 August 2007) (conclusion that the companies wishing to merge did not have identical interests; therefore, pre-merger discussions were not privileged); Union Carbide Corp. v Dow Chem. Co., 619 F.
Supp. 1036, 1047 (D. Del. 1985) (“identical and not similar” interests required in patent litigation); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172 (D.S.C. 1974) (“identical, not similar” interests required in patent litigation); The. Mun.
Police emps. Ret. Sys. v. Sealed Air Corp., 253 F.R.D. 300, 310 (D.N.J. 2008) (“[T]he Third Judicial District has not expressly adopted such a strict approach.”); With respect to Teleglobe Commc`ns Corp., 493 F.3d 345, 365 (3d Cir. 2007) (stating that “members of the community of interest must share at least one substantially similar legal interest”).
Terminology varies from province to territory. When lawyers encounter discussions from different courts about the co-client, the defence or the common plaintiff and privileges of common interest, they may find that the nomenclature varies from jurisdiction to jurisdiction. Some judges may use one or more of these terms relatively vaguely, without making a strict distinction between them. This is not surprising, since these extensions of solicitor-client privilege are relatively new to case law and courts are still working on fine distinctions. Since lawyers often have to call on outsiders on their “team” in order to provide the client with the best and most comprehensive representation, the law has created numerous exceptions to the rule that sharing an otherwise privileged communication can destroy privilege. For example, if a third party is required to provide legal advice (e.g. an accountant who helps translate dense financial information for the benefit of the client, or a Russian translator who communicates with a non-English speaking client), many jurisdictions refuse to determine that the communication or exchange of documents with such a third party will result in a waiver.4 And if a third-party contractor is the “functional equivalent” of an employee, Communication between a company, The company`s lawyer and the company`s “functional” employee generally remain privileged.5 The common interest doctrine is usually invoked in two related circumstances. First, when disputes arise between an insurer and an insured over coverage for an underlying settlement or judgment in favour of a third party, the insurer often seeks discovery of documents shared between the insured and their lawyer in the underlying case. Insurers often argue that there is a common interest between the insurer and the insured in the underlying litigation, so the insurer is entitled to the defence counsel`s documents. 24.
See Restatement (third) of the L. Governing Law. § 76 cmt. e (Am. L. Inst. 2000) (privilege applies to “legal, factual or strategic” communications); Hewlett-Packard Co. v Bausch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D.
Cal. 1987) (overview to facilitate due diligence); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997) (agreement). According to the court, the communication of the corridor did not serve the interests that justify the privilege. For example, the communication took place outside the presence of a lawyer (although, as the court notes, the lawyers were nearby) and not for the purpose of obtaining legal advice. The court described the communication simply as “a corridor discussion in which a JDA member passed on his independent, non-legal research to another JDA member while determining that he had sent the same research to his lawyer.” [9] In addition, the court concluded that “the mere fact that the communication took place between co-defendants who had entered into a joint defence agreement was not automatically sufficient to protect the statements from disclosure.” Finally, remember that solicitor-client privilege is usually a creature of state law, not federal law.35 While the foundations of solicitor-client privilege have long been established and consistent across jurisdictions, there are significant differences between forums with respect to the relatively new common interest privilege. As noted earlier, New York State has adopted a particularly narrow version of the common interest privilege by including the requirement of anticipated litigation, and other jurisdictions disagree on the meaning of the word “common,” among other things. Therefore, it is always essential for a practitioner to seek precedent in the reviewing jurisdiction and, if not, seek convincing case law or secondary authorities (such as the Restatement) elsewhere.