The historical roots of the privilege of common interest lie in the criminal proceedings against several co-accused. Chahoon v. Commonwealth, 62 Va. 822 (1871). In civil trials, the common interest privilege was created because civil co-accused often pursue the same objectives. See in R LTV Sec. Litig., 89 F.R.D. 595, 604 (N.D. Tex. 1981). In the civil context, the privilege of the common interest protects both the communication between the co-accused and their counsel in real litigation, as well as potential co-accused and their counsel.
Ferko v. NASCAR, 219 F.R.D. 396, 401 (E.D. Tex. 2003). It is the last type of communication – which is made between potential but not real co-accused – that raises a lot of questions today. Whether it is licensing agreements prior to the emergence of litigation or settlement in the midst of ongoing patent disputes, the fear that communication between parties may be discovered by third parties in future litigation, settlement progress can be avoided. The federal rule of evidence 408 is often invoked in such comparative discussions, but parties must be aware that Rule 408 is a rule of admissibility – not a discovery rule. Two considerations affecting confidentiality and disclosure issues should be considered in licensing/settlement negotiations: the privilege of the common interest and the use of a billing advisor. This is an interesting question that I will address in a future article.
At the hearing, the accused « emphasized » that the « common privilege of the defence » made the CIA untraceable. The court dodged the investigation and found that « cases dealing with the question of whether JDAs are privileged fall openly on the whole lot. » (Quoting Steuben Foods, Inc. v. GEA Process Eng`g, Inc., 2016 WL 1238785 (WDNY March 30, 2016)). However, at least one court has recognized the privilege of the common interest in the financing of the proceedings. Devon IT, Inc. v. IBM Corp., no 10-2899, 2012 U.S. Dist. LEXIS 166749 (E.D.
Pa. 27 Sept. 2012). In Devon IT, the Eastern District of Pennsylvania found that documents shared between a party and a trial promoter in accordance with confidentiality, common interest and confidentiality agreements were always preferred under the doctrine of the common interest. Id. at 4. The court justified this decision by the fact that, under « these controlled conditions, » there is no waiver of solicitor-client privilege. Id. at 6. The order stated that the « Common Interest Material » was explicitly described in the parties` common interest agreement as « any confidential information that is the working product of qualified legal advisors and/or lawyer`s products protected by solicitor-client privilege or similar privilege in any jurisdiction. » Id.