New York Decision on Common Interest Doctrine Suggests Caution in Sharing Attorney-Client Communications

On June 9, the New York Court of Appeals issued a decision on the attorney-client privilege and "common interest doctrine," which is an exception to the general rule that parties waive the attorney-client privilege by sharing protected communications with third parties. The court construed the common interest doctrine narrowly and held that it applies only when the attorney-client communication "relate[s] to litigation, either pending or anticipated." This ruling has implications for reinsurance because cedents sometimes rely on the common interest doctrine in providing certain information to reinsurers.

In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 2016 N.Y. LEXIS 1649, 2016 N.Y. Slip Op. 04439 (June 9, 2016), Countrywide and Bank of America declined to produce certain of their attorney-client communications concerning their 2008 merger in subsequent litigation with Countrywide's insurer. Countrywide and Bank of America acknowledged that they