More Courts Address The Common Interest Doctrine

Under the common interest doctrine, separately represented clients can sometimes avoid waiving the privilege when sharing privileged communications with others who have a common legal interest. However, the lack of certainty that the doctrine will apply should give every corporation pause before assuming that the doctrine will protect such sharing.

In Elan Microelectronics Corp. v. Apple, Inc., Case No. C 09-01531 RS (PSG), 2011 U.S. Dist. LEXIS 87989 (N.D. Cal. Aug. 8, 2011), the court handling a patent case held that a manufacturer and a customer did not have a sufficiently common interest to avoid waiving the privilege when they shared privileged communications. Among other things, the court noted that the companies shared the documents before there was a "suit or even a threat of a suit against any of the parties" involved. Id. at *17. Two days later, the District of Nebraska acknowledged that the United States government and a disability rights plaintiff