Under the widely recognized common interest doctrine, separately
represented clients may sometimes contractually avoid the otherwise
inevitable privilege waiver when sharing privileged communications.
As explained previously in Privilege Points, some courts apply the
doctrine only during pending litigation, and nearly every court
seems to at least require anticipated litigation. But occasionally
a court appears to articulate a far more expansive approach.
In Alta Partners, LLC v. Getty Images Holdings,
Inc., No. 22-cv-8916 (JSR), 2023 U.S. Dist. LEXIS 156520
(S.D.N.Y. Sept. 5, 2023), prominent Southern District of New York
Judge Rakoff issued a relatively short opinion on a number of
topics. Judge Rakoff first understandably held that defendant Getty
Images could not apply the common interest doctrine protection for
its communications with its shareholders — because Getty only
“shared a commercial or financial, rather than legal,
interest” with its shareholders. Id. at
