Common Interest Privilege Limited To Litigation In New York

This summer, the New York Court of Appeals ruled that the common interest doctrine applies only when two parties and their respective counsel share privileged communications related to a common interest in a pending or reasonably anticipated litigation. In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016), the state's highest court reversed a 2014 decision by an intermediate appellate court that had expanded the application of the common interest doctrine to commercial transactions, such as mergers, where litigation was neither pending nor anticipated.

The Common Interest Privilege

The attorney-client privilege shields from discovery any confidential communications between an attorney and his or her client made in connection with obtaining or facilitating legal advice in the course of an attorney-client relationship. This privilege, however, does not apply to communications made in the presence of third parties, where that presence is