Common Interest Agreement Discoverable
1. The exemption from privileges for the common interest of strict confidentiality may, in certain circumstances, extend solicitor-client privilege to communication between parties and non-parties. It protects communication that has been shared within a “genuine community of interest” at the time of communication. In re Teleglobe Commc`ns Corp., 493 F.3d 345, 364 (3d Cir. 2007). To be considered a “true community of interest,” the interests between the parties must be the same (which is not enough) and legal (not just commercial). Leader Techs., Inc. vs. Facebook, Inc., 719 F. Supp.
2d 373, 376 (D. Del. 2010). In addition, the information must have been provided with the aim of “securing, advancing or guaranteeing legal representation.” See In re Regents of the Univ. of Cal, 101 F.3d at 1389 (citation In re Grand Jury Subpoena Duces Tecum, 406 F. Supp. 381, 386 (S.D.N.Y. 1975)); See also In re Bevill, Bresler – Schulman Asset Mgmt. Corp., 805 F.2d 120, 126 (3d Cir.
1986). However, at least one court has recognized the privilege of the common interest in the financing of the proceedings. Devon IT, Inc. v. IBM Corp., no 10-2899, 2012 U.S. Dist. LEXIS 166749 (E.D. Pa. 27 Sept.
2012). In Devon IT, the Eastern District of Pennsylvania found that documents shared between a party and a trial promoter in accordance with confidentiality, common interest and confidentiality agreements were always preferred under the doctrine of the common interest. Id. at 4. The court justified this decision by the fact that, under “these controlled conditions,” there is no waiver of solicitor-client privilege. Id. at 6. The order stated that the “Common Interest Material” was explicitly described in the parties` common interest agreement as “any confidential information that is the working product of qualified legal advisors and/or lawyer`s products protected by solicitor-client privilege or similar privilege in any jurisdiction.” Therefore, it is possible for a court to decide that the common interest is to be held in the context of the financing of the proceedings if an agreement of common interest is reached, which clearly reframes the terms of the common interest. These agreements generally explain that the parties have a “common legal interest” and will not waive their legal and client privilege by exchanging information. I am quite inthiconic about these types of agreements, because if your client really has a “common legal interest” with someone else, then the law says that the client does not waive his privilege by giving the party the information of common interest covered by the privilege.
To say on paper that a client has a common legal interest with another party does not create such an interest if it did not exist. Some important jurisdictions have been in regents of the Univ. Calif. Quoted and recognized that the privilege of common interest can extend to communication between a licensee and a potential licensee. See z.B. TC Technology LLC v. Sprint Corp., Civil Action No. 16-cv-153-RGA (D. Del Dec.
13.12.2018) (application of Regents` explanatory statement that the common interest project protects disclosure of the acquisition and application of a patent); Love v. The Permanent Medical Group, Business Number. C-12-05679-DMR (N.D. Cal. February 19, 2014); Tech Pharmacy Services, LLC v. Alixa RX LLC, Case 4:15-CV-766 (E.D. Tex). July 24, 2017).
In an early case where the doctrine of the common interest was recognized in trade negotiations, the court found that a seller and a government authority could protect their negotiations from discoveries in a subsequent action by a competitor.