Parties to a trial often find themselves on the “same side of the courtroom” as other entities or individuals. In these cases, when a party is one of multiple (or more) co-plaintiffs or co-defendants, it is often advantageous to work collaboratively while navigating the legal battlefield presented by the litigation.
When applied correctly, the principles of the common interest doctrine protect the confidentiality of information and communications exchanged as part of a collaborative effort. However, to maintain this protection, counsel for each party must proceed with extra caution. This article will review the landscape of the Common Interest Doctrine in North Carolina and provide practical guidance to help keep attorneys and their clients within the bounds of its safeguards.
Common Interest Doctrine in North Carolina
The common interest doctrine allows parties with a common legal interest to maintain confidentiality while working together to pursue their common interest. The doctrine is most often used in lawsuits with multiple defendants. Typically, defendants will enter into an agreement to facilitate the joint or collective exchange of documents, communicate strategy, and otherwise coordinate litigation activities such as discovery. The common interest doctrine is an exception to the waiver of attorney-client privilege which, without consent, most likely results when such information or communications exchanged between an attorney and a client are disclosed to a person outside of the relationship. When applicable and properly used, the common interest doctrine effectively extends solicitor-client privilege to the parties to the agreement. SCR-Tech, LLC vs. Evonik Energy Servs. SARL2013 WL 4134602, *6 (NCBC 2013) (“the common interest doctrine extends the protection of solicitor-client privilege only to communications between parties sharing a common interest in a legal matter.”); Friday Invs., LLC vs. Bally Total Fitness of the Mid-Atl., Inc., 247 NC App. 641, 648, 788 SE2d 170, 177 (2016) (“the common interest doctrine does not recognize independent privilege, but is ‘an exception to the general rule that solicitor-client privilege is waived when disclosure of privileged information [to] a third.'”) (quoting United States vs. Schwimmer892 F.2d 237, 243-46 (2d Cir. 1989).
A party seeking to avail itself of the benefit of the common good doctrine must: “(1) share a community [legal] interest; (2) agree to exchange information for the purpose of facilitating legal representation of the parties; and (3) the information must otherwise be confidential.” Friday Inv., 247 NC App. at 648, 788 SE2d at 177. North Carolina courts distinguish between parties who share a commonality legal interests and those who share a common point Company interest. Identifier. 247 NC App. at 649, 788 SE2d at 177; see also, SCR-Tech2013 WL 4134602 at *6 (“A party seeking to rely on the common interest doctrine must demonstrate that the specific communications at issue were designed to facilitate an agreement legal interest; a business or commercial interest will not suffice. ); and In re Grand Jury Subpoena: Under Seal415 F.3d 333, 341 (4th Cir. 2005) (“For the privilege to apply, the promoter must establish that the parties had ‘a common interest in a legal matter.’”).
In SCR-Techthe North Carolina Commercial Court held that the parties shared a common legal interest when they were both defendants in the same lawsuit. SCR-Tech, 2013 WL 4134602 at *7. However, the parties only shared one thing in common Company interest when one party, SCR-Tech, became the plaintiff in a secondary lawsuit where the other party, Ebinger, was not a party to litigation and had no discernible or real legal interest. Identifier. (“Communications intended solely to facilitate SCR-Tech’s pursuit of its claims in this lawsuit may relate to a common business interest, but do not rise to a level of shared legal interest sufficient to support a privilege of common interest.”).
There is no clear rule in North Carolina as to whether the common interest will apply. The courts engage in a factual analysis when the doctrine is affirmed. Friday Inv., 247 NC App. at 648, 788 SE2d at 176. Corporate affiliation between parties claiming common interest privilege is not required but may be considered a factor by the court. SCR-Tech, 2013 WL 4134602 at *4 (“The common interest doctrine depends more on the common legal interests between the separate entities, although the fact of a social affiliation between them may be taken into account in the analysis of this legal interest common.”). What is important, even essential, is a shared legal interest in what is at issue.
Key practical tips
To ensure that a court recognizes a common interest agreement with another person or entity, lawyers should carefully adhere to the guidelines set out in previous doctrine opinions. Here are four key takeaways from the North Carolina case law on this topic:
Firstalthough it is not technically required, the parties will be well served to put their agreement in writing. Friday Inv., 247 NC App. at 648, 788 SE2d at 177 (“Although a prudent attorney would always put an agency agreement in writing, there is no requirement that the agreement be in writing.”). Establishing the existence of a commitment to collaborate on a matter of common legal interest can be very difficult without a clear written agreement that concisely states this.
Second, attorneys must mark all information exchanged and communications between them as “Common Interest Privilege: Common Interest Communication” (or with a similar declarative caveat). This will clarify the intent to apply the doctrine, exercise the privilege, and help ensure that confidential information and communications exchanged are not inadvertently produced or, if they are, not reviewed without the court’s review. has resolved the assertion of the applicability of the doctrine. and the exercise of privilege.
Third, to the extent possible, lawyers should ensure that lawyers are involved in all exchanges of information and communications. In addition, persons and entities that are not parties to the agreement should not be involved. For example, although lawyer A may need some factual information from client B, it is better for lawyer A to request this information directly from lawyer B. Alternatively, lawyer A should at least copy (or otherwise include) Lawyer B in his communications. with Client B. Parties not included in the mutual interest relationship should not be involved in the exchange of information or communications.
To finish, lawyers must preserve the privilege created by the doctrine by opposing requests for access when it is justified. Since the doctrine is only an exception to the general rules governing the waiver of solicitor-client privilege, the related privilege can still be easily waived if not properly asserted and protected. Where required, information exchanged and communications that are subject to doctrine and privilege should be recorded in a privilege log.