The Appellate Division, First Department, recently issued a ruling in Ambac Assur. Corp. v. Countrywide Home Loans, 124 A.D.3d 129, 998 N.Y.S.2d 329 (1st Dept. 2014), expanding the reach of New York’s common interest doctrine, which preserves the attorney-client privilege in situations where privileged information is shared among different parties with a common legal interest.
The Second Department as well as several New York state trial courts had previously held that the common interest doctrine applies only where the interest shared by the parties relates to pending or anticipated litigation. In contrast, most federal courts applying federal common law have held that “joint legal strategies in non-litigation settings” are sufficient to trigger the application of the common interest doctrine. This led at least one federal trial court to comment that the state of the common interest doctrine in New York was “unsettled.” The Ambac decision removes that uncertainty, at least within the First Department.
Common Interest
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