The Common Interest or Pooled Information Privilege
| Publication year | 1991 |
| Pages | 225 |
| Citation | Vol. 20 No. 1 Pg. 225 |
1991, February, Pg. 225. The Common Interest or Pooled Information Privilege
Increasingly, attorneys are involved in multiparty litigation in which some of the parties, who are separately represented, desire to coordinate their efforts or pool information. A question then arises regarding whether the sharing of certain information waives the protections of the attorney-client privilege or the work product rule. This article explores the emerging law regarding the "common interest" (or "pooled information") privilege, which allows the sharing of information without waiving any privileges.(fn1)
A central requirement of the attorney-client privilege is confidentiality. Typically, a communication made in the presence of a third party destroys the presumption of confidentiality. Thus, disclosure of a client's privileged communications to another party may constitute waiver of the attorney-client privilege.
However, an expansion of the attorney-client privilege has been recognized in a growing number of jurisdictions.(fn2) The common interest or pooled information privilege encourages the sharing of information among separately represented parties who have a common interest in a legal problem without destroying the privileged status of their communications.(fn3) Colorado appellate courts have not yet recognized the privilege, but courts in several other jurisdictions have.(fn4)
To establish the privilege, most courts that recognize it require the party claiming protection to show:
1) the communications were made in furtherance of a common interest;
2) the statements were made with the expectation of confidentiality; and
3) the privilege was not waived.(fn5)
Essentially, the common interest privilege expands the group of persons with whom privileged communications can be shared without jeopardizing the privileged status of the communications.(fn6) The rationale for the privilege recognizes that some interests and relationships are of sufficient importance to justify the loss of a means of introducing relevant evidence.(fn7) Thus, the privilege protects the free flow of confidential information among parties with a common interest and limits the instances that might otherwise constitute a waiver of the attorney-client privilege.
The benefits of pooling information will vary with each case. However, some typical advantages may include the following:
1) avoiding formal discovery;
2) informally exchanging information without the knowledge of adverse parties;
3) capitalizing on the special skill, knowledge or expertise of a party or attorney;
4) sharing the labors of research or investigation;
5) uniting forces against a common adversary;
6) enhancing the settlement posture of a case; and
7) reducing legal fees.
The nature of the information exchanged may be either factual, legal or strategic in character.(fn8) Separately represented parties most often will find a common interest in factual issues. However, separately represented clients also can benefit from sharing information on common legal or strategic concerns.
Totally identical interests are not required for the common interest privilege to apply. The presence of incongruent or adverse interests on some issues is not a barrier to the application of the privilege, as long as the parties only share information on issues in which they have a common interest.(fn9) Thus, plaintiffs or defendants may be able to share information on issues of common interest.(fn10) Further, at least one court has recognized the privilege despite antagonistic interests that surfaced among those sharing the information during litigation.(fn11)
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