Non-Parties and the Common Interest Privilege

April 01, 2005

With the recent spate of corporate scandals, plaintiffs’ counsel have targeted corporations, their employees and representatives to shoulder the blame.  As a result, multiple civil lawsuits often arise out of the same transactions/business activities.  Naturally, defendants feel compelled to unite with their comrades in order to mount a solid defense.  The question arises: can these parties work together in a joint defense?  In many instances, the answer is yes.  However, when the person with whom you wish to share information is not actually a party to your lawsuit, those communications may not be protected.  In fact, the answer may differ depending upon the governing law.  At the heart of this paper is the issue of whether similarly situated parties (although not each parties to the same suit) can work together for a joint defense while enjoying the protection of the attorney-client privilege.

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