There was a time when most litigation involved simply two parties: a plaintiff and a defendant. As litigation (and even corporate practice) has become more complex, it is more common that a matter will involve multiple parties whose interests are aligned but who are not represented by the same attorneys. These multiple parties may want to communicate with each other in furtherance of their own interests but without risking a waiver of any applicable privileges or immunities. Clients and counsel can benefit from the options developed by courts, including by sharing a joint defense or common interest privilege.
The prerequisites, scope and boundaries of the joint defense or common interest privilege can differ significantly, depending on the jurisdiction. State and federal jurisdictions vary over whether they even recognize a joint defense or common interest privilege, as well as to what extent such a privilege applies.
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