Attorneys and their clients often rely on the “common interest” doctrine to shield from disclosure communications among allied parties and their counsel. Although invocation of the common interest doctrine is seldom challenged through litigation in the Southern District of New York, with only a handful of written decisions on the subject each year, its contours are not as well-defined as many lawyers assume, and such challenges tend to result in disclosure of some communications parties and their counsel thought would remain confidential when they took place.
Two recent decisions narrowly construing the common interest doctrine—one from the Southern District of New York and one from the New York Court of Appeals—underscore the importance of understanding the common interest doctrine’s requirements before engaging in communications with third parties and their counsel with the expectation that those communications will be privileged. Recent decisions also highlight those aspects of the doctrine that remain to be defined.
Common Interest Doctrine
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