Common Interest Privilege Covers Later Exchange of Privileged Documents Created Before the Privilege Existed

On August 30, 2018, Justice Schecter of the New York County Commercial Division issued a decision on PMC Aviation 2012-1 LLC v. Jet Midwest Group LLC, 2018 NY Slip Op. 32142(U), holding that the common interest privilege covers the later of exchange of privileged documents created before the common interest existed, explaining:

The Court of Appeals recently addressed the scope of the common interest exception in Ambac Assur. Corp. v Countrywide Home loans, Inc. (27 NY3d 616, 623-27 [2016]). Where two or more clients separately retain counsel to advise them on matters of common legal interest, the common interest exception allows them to shield from disclosure certain attorney-client communications that are revealed to one another for the purpose of furthering a common legal interest. The key holding of Ambac was that, unlike in other jurisdictions, application of the common interest exception requires that the communications were shared in connection with pending or anticipated litigation.

Here, Amur shared the subject documents with the Company during this litigation while united in interest against the JMG Parties. This litigation posture is obvious from the court's prior decisions. The only wrinkle here is that the communications that were shared with the Company predate the litigation, and arguably, not all of them were made when litigation was anticipated. The parties agree that this is not the ordinary situation in which the common interest exception is invoked, as the exception usually implicates communications between co-litigants, not disclosure of one side's pre-litigation privileged communications to a co-litigant. Nonetheless, it makes sense that co-litigants in an active litigation who share a common interest should be able to share their own prelitigation privileged communications if that disclosure furthers their common interest in the litigation without any fear of waiver. The JMG Parties have not cited any authority to the contrary. The court, therefore, finds that no waiver occurred.

(Internal quotations and citations omitted).

An issue that arises in almost all complex commercial litigation is identifying evidence that should be withheld from production in evidence because it is subject to the attorney-client or other privilege. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding the attorney-client, common interest, work product or other privileges or exemptions from production of evidence.