The common interest privilege is expanding, and corporations and corporate officials should take note. In many instances they can, and likely should, use the privilege to protect their confidential documents and communications from future discovery requests. A recent case in New York hammered that point home. In Ambac Assurance Corp., et al. v. Countrywide Home Loans Inc., et al. ( Dec. 4, 2014), the New York Supreme Court Appellate Division, First Department, agreed with the predominant view of the federal courts, as well as courts in California and Delaware, that the common interest privilege does not require that the advice at issue be given in anticipation of litigation.

The common interest privilege is rooted in the attorney-client privilege. The difference is that the presence of a third party destroys the attorney-client privilege. In such circumstances, the common interest privilege can be used to continue to protect communications with third parties. This article examines the potential application of the recent New York ruling to situations in which both corporations and individual corporate officials have an interest in protecting privileged documents, particularly during the negotiation of a transaction. By using the common interest privilege, corporations and corporate officials can avoid potentially complex future disputes regarding which party maintains the attorney-client privilege following a transaction.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]