Solicitor-client privilege may be waived by voluntary disclosure to independent third parties under California and federal law. Ed. Evid. Code § 912; Hernandez v. Tanninen, 604 F.3d 1095, 1100 (Cir. 9, 2010). Similarly, the protection of labour products through disclosure may be waived if the disclosure is totally incompatible with the objective of protection. See Behunin v. Superior Court, 9 Cal.App.5th 844, 845-846 (2017); Nidec Corp.c. Victor Co. of Japan, 249 F.R.D.
575, 578 (N.D. Cal. 2007). The common interest privilege is not a privilege in itself, but rather serves as an exception to the waiver of solicitor-client or solicitor-work product privilege. Nidec, 249 F.R.D., p. 578; United States v. Gonzalez, 669 F.3d 974, 977-978 (9th Cir. 2012) (”The Ninth District has long recognized that joint defense privilege is an extension of solicitor-client privilege. ”) Since the common interest privilege ”is an anti-waiver exception, it comes into force only if the communication in question is privileged in the first place”. Nidec, 249 F.R.D.
at 578. The purpose of this email is to recall our discussions yesterday on the common interests of our customers in FIFA-related matters. We will work together in accordance with an agreement on a common interest. I understand that it will have similar terms to the last one we had, and we can know if we have it in writing, specific details, etc. when you land. It has been effective since yesterday. [12] Unlike the Ninth District, California does not recognize a common defense privilege per se; However, California recognizes a ”doctrine of common interest” that can allow for the disclosure of inside information without sacrificing privilege. See Meza v.
H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4. 969, 981-983. Disclosure of privileged communications to the parties waives solicitor-client privilege unless the following requirements are met: (1) an expectation of confidentiality; and (2) a common interest that must be disclosed in order to promote the interests of clients. Oxy Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 890-891. To avoid a waiver, it is not sufficient simply to prove that the parties who disclosed privileged information had overlapping interests under a written oral agreement or ”joint defence agreement”; Disclosure must be made in the expectation of confidentiality and reasonably necessary to promote the customer relationship.
Meza, 176 Cal.App.4th at 982-983. In legal disputes, co-defendants often have a common interest in rejecting the plaintiff`s claims. Especially in situations where the co-defendants are not trying to blame each other, the courts have recognized that defendants can reach a common defense by sharing trust and secrets and perhaps even costs. In the case of a joint defence, defendants can protect the communication from discovery by the plaintiffs. It should be noted, however, that communication is generally not protected in the event of a dispute between co-respondents. About 20 years ago, California courts questioned whether California law would offer similar protection for the exchange of information between parties with common interests. In California, privileges, unlike federal law, are creatures of the law. The courts do not have the power to create new privileges, and the California Evidence Code does not include a common defense privilege for separately represented parties.
Thus, California courts have concluded that there is no common defense privilege. Raytheon Co., 208 Cal. App. 3d to 689. To provide some protection, California courts have recognized that they can protect joint communications under Section 912 of the Code of Evidence, which states that disclosure does not waive privileges if such disclosure is (a) confidential and (b) reasonably necessary to achieve the purpose for which an attorney was consulted. In order not to suggest the existence of a separate privilege, California courts refer to the doctrine of common defense or common interest rather than privileges. See Oxy Resources, under 889-94. To maintain the privilege of sharing communications with others, a party must usually prove three things: that the communication was based on a common interest, that the communications were made to further the objectives of that interest, and that the privilege was not otherwise waived (i.e., that the common advocates do not share the communication beyond their limited group).
Companies involved in a sale or merger, or trying to attract investors, may want to share their lawyer`s legal advice on the strength of their intellectual property. Lawyers should proceed with caution in this area, as the Federal Court`s decisions regarding the applicability of joint defence privilege are inconsistent. (The problem arises primarily in federal courts when patent litigation occurs.) If protection is essential, before the client shares inside information with a buyer or investor, a lawyer should seek the competent jurisdiction and inform the client of the risks of waiver. The following cases illustrate the diversity of views. Lawyers may also be concerned that understanding a non-client`s privileged communication may create obligations to the non-client or an implicit lawyer-client relationship with members of a joint defence group. Some federal decisions have suggested that an implied lawyer-client relationship can be created as a result of a joint defense agreement. See U.S. v. Henke, 222 F.3d. 633 (9th Cir. 2000) (Joint Defense Treaty Establishes Implicit Attorney-Client Relationship); but see U.S.
v. Stepney, 246 F. Supp. 2d 1069, 1080 (N.D. Cal. 2003) (”The courts have always held that the obligations arising from joint defence agreements are distinct from those arising from the actual lawyer-client relationship.”). California courts have rejected the idea that participation in a joint interest group extends the attorney-client relationship to non-client class members. See Oxy Res. Callus. LLC v. Superior Court, 115 Cal.App.4th 874, 889 (2004). Documents shared between seller and buyer and not protected by common defence privilege: In Oak Industries v.
Zenith Industries, 1988 WL 79614 (N.D. Ill. 1988), the patent applicant asked the defendant to make a statement 30(b)(6) about the defendant`s communication with a potential buyer. The defendant dismissed the application, arguing that it had shared privileged communications about its patents and that they were protected by common defence privilege. The court disagreed and, on the whole, ruled that a party was waiving its solicitor-client privilege by disclosing confidential information to a potential buyer. California attorneys, especially defense litigants, rely on the ”privilege” of common defense or the doctrine of common interest to share privileged documents and communications with third parties without risking waiver. Transactional lawyers may not realize that doctrine may, in certain circumstances, protect communications or documents exchanged between adversary negotiators from detection. Fortunately, many state and federal courts have developed common defense and common good doctrines that can protect communications between the parties. However, the preconditions and limitations of these doctrines can vary considerably from jurisdiction to jurisdiction, and in some jurisdictions there are strict limits to their application, if any. Various practical consequences arise from the fact that California recognizes a doctrine of common interest rather than a privilege for common defense. First, an authorization log must not only identify documents protected by ”common interests,” but rather identify the applicable work product authorization or citation doctrine.
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