[8] Baxter Travenol Labs. Inc. v. Abbott Labs., 1987 WL 12919, *1 (N.D. Ill. 19 June 1987) (“A legal community of interest may arise; they have a common legal interest in the development of patents in order to obtain the greatest possible protection and in the exploitation of patents. In particular, in describing the application of the common interest privilege, the Third Circuit stated that it should not be used “as a post-hoc justification for inappropriate disclosures by a customer.” This remark was relevant to a recent decision in the Southern District of New York that found that the common interest privilege did not apply to communications between an employee`s lawyer and his company`s lawyers because the employee could not prove at the time of the communication that he and the company had agreed on a common interest or legal strategy. It is common for parties to a transaction or business relationship to conclude that their situation requires more than one non-disclosure agreement. And it often happens that certain privileged communications with lawyers and clients must be shared. The parties often attempt to protect this information through so-called common interest agreements or joint defence agreements, depending on the circumstances. Both agreements are part of a broad legal framework known as the doctrine of the common interest.
Although the doctrine is well known, it is often misunderstood. Confidential communications between lawyer and client may be privileged and not disclosed unless they lose their confidentiality by being disclosed to third parties. Under the third element, the courts require that the joint disclosure privilege be maintained prior to the disclosure to the third party and existed at the time of the disclosure to the third party. objective or strategic interests in individual cases. However, courts will generally not extend the doctrine to participants with simple common problems or a common desire to succeed in a lawsuit.16 Most courts consider that only communications made in an ongoing joint venture that are intended to promote the business are protected.17 Overall, the court has weighed the evidence and noted that: that both parties must agree to pursue a common legal strategy. considered that the prerogative of common interest was not applicable in those circumstances. According to the second element, the notifications must have been made to promote joint legal efforts. Courts will look for early efforts by clients to hire attorneys to determine whether the client originally intended to communicate to encourage legal effort.18 The First Circuit ruled in U.S. v. Felci, 874 F.2d 20, that in circumstances where the information was not previously disclosed to an individual`s counsel, it is difficult to see how the information was disclosed as part of a common defence, even though the parties may be considered persons with similar interests.19 [12] Bevill, Bresler & Schulman Asset Mgmt. Corp. 805 F.2d 120, 126 (3d Cir.
1986); see also Shaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015) (on the ground that `only communications made in the framework of an ongoing joint venture and intended to promote the undertaking shall be protected`); With respect to Pacific Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“the parties shall make the communication in pursuit of a common strategy in accordance with any form of agreement, whether written or not”); With respect to the subpoena before the grand jury, 415 F.3d 333, 341 (4th Cir. 2005) (“For the privilege to be applied, the proponent must demonstrate that the parties had “a common interest in a legal matter” […] “some form of common strategy is required”); With respect to the subpoena before the grand jury, 274 F.3d 563, 572 (1st Cir. 2001) (“Common defence privilege protects communication between a person and another person`s lawyer when the communication is “part of an ongoing and joint effort to establish a common defence strategy”); In re Santa Fe Int`l Corp., 272 F.3d 705, 711 (5th Cir. 2001) (“[The common interest privilege] extends to communications between persons “who consult a lawyer together as a group of common interests to seek joint representation`”) (cited omitted); With respect to grand jury proceedings, 156 F.3d 1038, 1043 (10th Cir. 1998) (requires explicit or implicit evidence of a common defence agreement and promotion of the “presumed common defence strategy”); United States vs. Evans, 113 F.3d 1457, 1467 (7th Cir. 1997) (with the observation that the doctrine of the common interest “generally allows a defendant to invoke solicitor-client privilege in order to protect his confidential statements not against his own lawyer, but against a lawyer of a co-respondent for a common purpose related to the defence of both”); With respect to grand jury subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir.
1997) (common interest privilege applies “not only when a legal dispute is ongoing or imminent, but […] whenever communications have been made to facilitate the mediation of legal services to each of the clients involved in the conference”). Imagine representing a person who has been subpoenaed as part of the government`s investigation against their employer. Your client has made the decision to speak to the government under the terms of a quote contract. Instead of blindly entering into this interview, you and your client want to have the benefit of learning some information from the employer and other witnesses, including current government theories of accountability, key documents the government has focused on so far, defensive measures that might exist, and what the employer and other employees consider to be the main liabilities. They will have to conclude a common defence agreement based on the privilege of the common interest in order to maintain this privilege of exchange of information. First of all, there is the problem of customer training. The client must be made aware of the need to establish a customer relationship, to retain relevant information if it is a procedural matter or could become a procedural issue, to avoid the urge to discuss the matter internally and not to discuss it with a third party without prior agreement. It must be clear to the client that the very existence of a common interest or enemy does not fulfill the doctrine of the common interest! The client must be informed of the elements necessary for an enforceable agreement and the participation of the lawyer in the exchange of communications. To the extent possible, legal counsel should be the focal point for all relevant communications between the parties. While there are some precedents for protecting communications between clients, this is a very specific consideration of jurisdiction that can be particularly problematic when the parties are in different jurisdictions. Therefore, customer-to-customer communication should be avoided.
[16] See e.B. In re Pac. Pictures Corp., 679 F.3d at 1129 (on the grounds that the “victim” had no common legal interest with the government because of a “common desire to see the same outcome in a legal case”). Courts also differ in their common interest requirements, which ultimately triggers protection. The Restatement (Third) of Law Governing Lawyers § 76 (2000) (“Restatement”) takes a broad approach whereby the relevant common interest may be of a legal, factual or strategic nature.6 Some courts have adopted the reprocessing approach and extended the privilege to situations where the common interest is not strictly legal in nature. These situations include communication between a patent developer and a patent licensee,7 communication between parties developing patents together,8 and communication focused on developing a patent program for maximum patent protection.9 Rashid also argued that he reasonably believed that the common interest privilege applied when sharing information because he had only received a warning from Paul. Weiss. had.
before hiring his own lawyer and never receiving him again. The court rejected this argument, noting that the administration of the Upjohn warning actually reinforced Paul Weiss` understanding that it did not share a common legal interest with Rashid, and the fact that Paul Weiss administered the warning only once was not evidence that the parties had a common legal strategy. .