However, New York courts have traditionally imposed a “trial requirement” on the doctrine of common interest. In other words, New York law has long held that, for the doctrine to apply to communications aimed at promoting a common legal interest, the parties must be faced with ongoing litigation or reasonably anticipate litigation. [5] The Delaware Superior Court recently developed the doctrine of common interest in the context of a merger. In American Bottling Co. v. Repole, C.A. No. N19C-03-048 AML CCLD, Judge LeGrow ruled that privileged communications, shared in the final phase of a merger with a third party, are not subject to the doctrine of the common interest. According to the doctrine of common interest, despite disclosure to third parties, the privilege of a lawyer is not waived when the communication in question has taken place between a client or his lawyer and another lawyer representing another person in a matter of common interest. However, this doctrine applies only if the common interest of the parties relates primarily to legal issues and not to a common commercial interest. This distinction between business and law was at the heart of the Tribunal`s finding of American Bottling Co. In Wi-Lan, Inc. v.

LG Electronics, Inc., no. C-10-80254, 2011 WL 500072 (N.D. Cal. Feb. 8, 2011), the Tribunal decided that the disclosure of privileged documents was not regulated by FRE 502 prior to the commencement of federal proceedings. While the parties were negotiating a possible license agreement, but before the immediate infringement action was filed, Wi-Lan`s General Counsel sent an expert report from Wi-Lan`s external attorney to LG, which discussed the injury issues raised by LG. In the ensuing litigation, LG argued that disclosure of the letter waived the privilege of the entire subject matter of the letter. Wi-Lan argued that FRE 502 (a) generally precluded the foregoing of the object. The judge ruled that Congress` clear instruction is that FRE 502(a) only applies “if the disclosure is made in the course of a federal proceeding.” This is where the disclosure took place before an appeal was brought. Therefore, protection against renunciation of the object is not applicable. However, the Tribunal upheld Wi-Lan`s objection to preparing an expert report and found that LG had not demonstrated the overriding necessity of these materials.

The doctrine of common interest protects communication with a third party from disclosure where the common interest invoked by the party invoking the privilege is intended to promote a common legal strategy or common objective with the third party and not only for commercial purposes. While lawyer`s privilege is generally limited to communication between a client and his lawyer, which did not take place in the presence of a third party or which was subsequently transferred to a third party, the common interest doctrine grants protection for confidential communications exchanged between separately represented parties, provided that they take place for the purpose of pursuing a common legal strategy. [3] As a result, some legal systems have considered the doctrine of common interest as a protection of communication in the transactional context, even if several parties are parties. [4] According to the doctrine of common interest, parties are allowed to disclose inside information when a third party and the holder of the privilege participate in some kind of joint venture and the legal counsel refers to the objective of that undertaking. . . .