Anticipation of Litigation Advisor
Waiver of Privilege-Protected Email Communications by Voluntary Disclosure: The "Common Interest" Exception
July 23, 2018
By: Spencer W. Tanner
On a macro level, the discovery process provides a litigant with a number of devices (i.e., interrogatories, requests for production of documents and admissions, depositions) to compel disclosure of information from another person. In federal court, litigants’ use of these devices is limited to matters that are “relevant to any party’s claim or defense” and “proportional to the needs of the case.”
Privileged documents and communications, however, cannot be discovered. No matter how relevant or needed a privileged matter is, a litigant cannot compel disclosure of privileged documents and communications. 1
Two important such privileges are the work-product privilege and the attorney-client privilege. In an earlier post, we discussed the work-product privilege, which protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative” from compelled disclosure. Another commonly invoked privilege is the attorney-client privilege, which attaches to
(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal assistance for the client.” 2
“Privileged persons” include the client and lawyer as well as other privileged persons who facilitate communication between the client and lawyer, on the one hand, and persons who aid the lawyer in representing the client, on the other hand. 3 Nevertheless, “[i]f persons other than the client, its attorney, or their agents are present, the communication is not made in confidence, and the privilege does not attach.” 4
Significantly, a party can voluntarily “waive” these privileges. For example, disclosing an otherwise privileged communication to a third party unquestionably waives the attorney-client privilege 5 (that is, unless Rule 502 of the Federal Rules of Evidence 6 or a state law analog applies). “[I]f a client subsequently shares a privileged communication with a third party, then it is no longer confidential, and the privilege ceases to protect it. 7 This is because the act of disclosing signals that the client does not intend to keep the communication secret. 8 Although immunity afforded by the work product doctrine is not automatically waived by disclosure to a third-party, “[g]enerally, the work product privilege is waived when protected materials are disclosed in a manner which is either inconsistent with maintaining secrecy against opponents or substantially increases the opportunity for a potential adversary to obtain the protected information.” 9
In today’s business environment, the most commonly used communication device is email. A common problem lawyers combat in litigation is finding that their clients have waived a privilege by sharing emails containing legal advice or work-product with “unprivileged persons.” The carbon copy (cc) and forward (fwd) buttons make doing this so easy that clients often don’t think twice before pressing send. The autocomplete function in e-mail also can create problems when the wrong nonprivileged party is mistakenly included on an email instead of a privileged party.
Fortunately, there is a limited exception to the disclosure rule for communications made to those with a “common interest.” The common interest exception extends the work product and attorney-client protections to communications that were relevant to, or advanced the interests of, those possessing a common interest with a privileged party. Parties do not have a common “legal” interest simply because they routinely deal with one another and neither desires to be sued. In most federal circuits, the common interest doctrine will only apply “where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise.” 10 For example, the doctrine may apply to real estate developer sharing legal advice with architects, surveyors, and builders in a joint venture.
Participants with a common legal interest can be actual or potential codefendants, or simply interested third parties who have a community of interest with respect to the subject matter of the communications. As the District Court for the Northern District of Indiana recently explained:
For a third party to have a sufficient “community of interest” in litigation to invoke the attorney-client privilege, the court must find: “[T]hey have an identical legal interest with respect to the subject matter of a communication between an attorney and a client concerning legal advice. The third parties receiving copies of the communication and claiming a community of interest may be distinct legal entities from the client receiving legal advice and may be a nonparty to any anticipated or pending litigation. The key consideration is that the nature of the interest be identical, not similar, and be legal not solely commercial.” 11
Due to the subjective nature of the “common interest” exception, some courts have mandated that attorneys, not clients, be the discloser of protected communication in order to coordinate legal strategies. These courts reason that “[b]ecause the common interest privilege is an exception to the disclosure rule, which exists to prevent abuse, the privilege should not be used as a post hoc justification for a client’s impermissible disclosures.” 12 The attorney-sharing requirement is intended to prevent abuse of the common interest exception to waiving a privilege. 13
While the application of the common interest exception to waiver will vary depending on the law in your jurisdiction and the nature of the communications disclosed, it is a best practice to ensure that protected communications remain privileged by double-checking recipients on all communications that may contain legal advice or work product to ensure that the privilege has not been voluntarily waived. Instead of cc’ing or forwarding a long email chain that may contain legal advice, send a separate email. Better yet, communicate by phone when you think a privileged matter may be concerned.
1 A notable exception to the rule of privilege, however, is the crime-fraud exception, which places communications made in furtherance of a crime or fraud outside the attorney-client privilege and available to be discovered. See United States v. Zolin, 491 U.S. 554, 563 (1989).
2 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (2000).
3 Id. at § 70; see also In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir. 2007).
4 Teleglobe, 493 F.3d at 360.
5 Teleglobe, 493 F.3d at 361; see also In re Berks Behavioral Health LLC, 500 B.R. 711 (Bankr. E.D. Pa. 2013).
6 Fed.R.Civ.P. 502(b)(concerning inadvertent disclosures made to a federal agency or during a federal proceeding).
7 Teleglobe, 493 F.3d at 361.
8 Id. (citation omitted).
9 Fullerton v. Prudential Ins.e Co., 194 F.R.D. 100, 103 (S.D. NY. 2000)(citations omitted).
10 U.S. v. BDO Seidman, LLP, 492 F.3d 806, 815-16 (7th Cir. 2007).
11 Anderson v. Torrington Co., 120 F.R.D. 82, 86 (N.D. Ind. 1987).
12 Teleglobe, 493 F.3d at 365.
13 Id.