A recent article in The New York Law Journal details two recent decisions in the Southern District of New York and the New York Court of Appeals addressing the importance of understanding the common interest doctrine's requirements before engaging in third party communications under the belief that said communications qualify as privileged.
Authors Edward M. Spiro and Judith L. Mogul explain, “Attorneys and their clients often rely on the ‘common interest’ doctrine to shield from disclosure communications among allied parties and their counsel. … 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.”
The decision from the Southern District of New York in Guiffre v. Maxwell examines the limits on the doctrine imposed by its first requirement—that communications in question must otherwise qualify as privileged. The New York Court of Appeals' decision in Ambac Assurance Corp. v. Bank of America Corp. explores the doctrine’s second requirement—that communicating parties share a common legal interest in order to avoid waiver of the privilege.
The authors explore both decisions in-depth and conclude, “The Ambac decision makes clear that under New York law, the common interest doctrine applies only where there is pending or anticipated litigation. For litigants in the Southern District of New York seeking to avail themselves of the common interest privilege, however, so long as the communication is otherwise privileged, considerable play in the joints remains in determining when litigation is reasonably anticipated, and what qualifies as a common legal interest.”
Read the full article online [subscription required].
Guiffre v. Maxwell, 2016 WL 1756918 (S.D.N.Y. May 2, 2016) (Sweet, J.)
Ambac Assurance Corp. v. Bank of America Corp., 806 F.3d 34 (2d Cir. 2015)