Chapter 20 The Joint Defense/common Interest Doctrine

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 20

THE JOINT DEFENSE/COMMON INTEREST DOCTRINE

20.1 INTRODUCTION

In certain specific circumstances, an agreement among multiple separately represented clients can avoid what would normally be a waiver upon their sharing of each other's privileged communications.

• However, so-called "joint defense" or (more commonly) "common interest" doctrine normally does not offer the assurance that many lawyers and their clients expect. Such agreements often fail, by which time it is too late to avoid a privilege waiver.

20.2 COMMON INTEREST DOCTRINE VERSUS JOINT REPRESENTATIONS

The common interest doctrine differs from joint representation arrangements in several important ways. ¹ [20.201]

Under the common interest doctrine, each participant retains its own lawyer, and shares privileged communications with the other common interest participants only to the extent that it wants to share. [20.202]

The common interest doctrine has a number of advantages and disadvantages compared to joint representations. [20.203]

The advantages of the common interest doctrine over a joint representation include:

• Possible privilege protection among clients who normally could not be represented by a single lawyer because of serious conflicts.

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• Absence of the normal requirement to share all privileged communications with the other participants (in contrast to joint representations' usual "no secrets" approach).

• Participants' ability to withhold from the other participants privileged communications with their own lawyers, if adversity develops.

• Increased likelihood that lawyers can continue representing their own clients if adversity develops.

The disadvantages of the common interest doctrine compared to joint representations include:

• Most courts' recognition of valid common interest agreements only if the participants are in or reasonably "anticipate" litigation—with the lack of a consensus "anticipation" standard compounding the uncertainty.

• Courts' disagreement about the type and degree of commonality required to support common interest agreements, which increases uncertainty about such agreements' effectiveness.

• Some courts' "micromanagement" of common interest agreements by selection of a later effective date than the participants contractually designated—which means that any sharing of privileged communications before that date waived privilege protection.

• Greater likelihood of adversaries' challenges (resulting in over half of asserted common interest agreements failing).

• Common interest participants' usual inability to know in advance where adversaries might challenge their common interest agreements, which prevents the participants from planning ahead to meet the applicable standard.

• Common interest participants' inability to predict whether their agreement will survive courts' later scrutiny—by which time it is too late for the participants to avoid having waived their privilege protection.

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• The possibility that waivers occurring in connection with common interest agreements might result in subject matter waivers.

20.3 HISTORY OF THE COMMON INTEREST DOCTRINE

The common interest doctrine began in a nineteenth century criminal case, in which the Virginia Supreme Court allowed criminal co-defendants to share privileged communications without waiving their protection. ²

As the doctrine spread to the civil context and began to protect plaintiffs as well as defendants, most courts began to use the broader term "common interest doctrine."

VA	The Western District of Virginia 3 and several Virginia circuit court cases 4 recognized Virginia's acceptance of the common interest doctrine.
•	Despite the widespread adoption of the common interest doctrine, some states still do not appear to recognize it.

20.4 NATURE OF THE PROTECTION

Some courts' description of the doctrine contains an erroneous conclusion—although those courts' apparently incorrect articulation does not seem to have weakened the doctrine's applicability. [20.401]

Many courts state that the common interest doctrine applies only if the underlying communication disclosed to fellow common interest participants intrinsically deserves privilege protection. [20.402]

• This is undeniably true for pre-existing communications, but obviously is not true for communications among the common interest participants' lawyers and the participants themselves.

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• Fortunately, courts applying the doctrine normally protect such communications, despite the absence of any intrinsic privilege protection for them.

Courts normally require confidentiality among common interest participants. [20.403]

20.5 LITIGATION ELEMENT

Perhaps the common interest doctrine's greatest weakness involves most courts' insistence that the participants be in or anticipate litigation. Most courts recognize the doctrine, but have never settled on a uniform approach to this "anticipation of litigation" requirement. [20.501]

Some courts do not recognize the common interest doctrine in any situation, regardless of any anticipated litigation. [20.502]

Some courts honor common interest agreements only in the context of active ongoing litigation. [20.503]

Some courts examine each participant's involvement in or anticipated involvement in litigation, which risks rendering the protection unavailable for all the participants if one of them does not sufficiently anticipate litigation. [20.504]

Courts' varying definitions of the required "anticipation" compounds the uncertainty.

•

Examples include substantial possibility of litigation; strong possibility of future litigation; palpable threat of litigation; realistic basis for believing that the participant will be a party; threatened litigation; reasonably anticipated litigation; more than a "fear" of a lawsuit (which the court said was a "concern shared by most—if not all—corporations."); some prospect of litigation; potential litigation; contemplated litigation; facing no immediate threat of litigation.

VA

A Virginia circuit court 5 denied common interest protection for communications for third parties who were "not potential parties."

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Another Virginia circuit court 6 and the Eastern District of Virginia 7 implied the same thing.

Some courts extend common interest doctrine protection to participants who do not themselves necessarily anticipate litigation, but whose interests are aligned with other participants who are in or anticipate litigation. ⁸ [20.505]

•	Courts have applied this approach to defendants and plaintiffs.
VA	The Eastern District of Virginia 9 and the Western District of Virginia 10 explained that the common interest doctrine can apply to communications to and from non-parties. The Fourth Circuit 11 applied the common interest doctrine to communications to and from the U.S. government, even though it did not appear from the context likely to be a party.

The Third ¹² and Seventh ¹³ circuits have articulated a common interest doctrine protection that would apparently apply even in the absence of litigation or anticipated litigation. [20.506]

• However, lower courts in those

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