Supporting the Recognition under Massachusetts State Law of the Joint Defense Privilege or Common Interest Rule
On August 3, 2007, the Massachusetts Supreme Judicial Court rendered a unanimous decision adopting the so-called joint defense privilege, which allows parties with a common legal interest to share privileged information without waiving that privilege. The Court agreed with NELF, both that the doctrine should be adopted and that it is more appropriately called the common interest doctrine. According to NELF’s research, reflected in the amicus brief which it filed in the case on behalf of itself and the Associated Industries of Massachusetts, this decision brings Massachusetts in line with 39 other states (including all New England states other than Rhode Island, which is silent on the question) that have embraced the doctrine. The Court agreed with NELF that the doctrine extends to consultations between counsel to parties to business transactions where there is a common legal interest and is not limited to the litigation context. The Court further agreed with NELF and others that no written agreement is necessary; it is the sharing of privileged communications between counsel to parties having a common legal interest that gives rise to the protection, not a writing. And one need not demonstrate a client’s knowledge of or consent to the sharing of the privileged communications. The Court also rejected an assertion by Hanover that the interests of the parties must be identical, rather than just common. The Court adopted an approach whereby one focuses on the general purpose for sharing of the communication such that an interest is “common” where parties “share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication.” Where defendants allege a joint effort to establish a common litigation defense strategy, they need only prove that the communications were made in the course of a joint defense effort, the statements were designed to further that effort, and the privilege has not been waived.
The decision provides considerable comfort to practitioners, who have been relying on trial court decisions recognizing the doctrine in the absence of appellate confirmation of its validity. With this question resolved, counsel to aligned businesses can comfortably engage in the coordination necessary to mount effective and thorough cases in multi-party litigation and to effectuate multi-party business transactions.
On August 3, 2007, the Massachusetts Supreme Judicial Court rendered a unanimous decision adopting the so-called joint defense privilege, which allows parties with a common legal interest to share privileged information without waiving that privilege. The Court agreed with NELF, both that the doctrine should be adopted and that it is more appropriately called the common interest doctrine. According to NELF’s research, reflected in the amicus brief which it filed in the case on behalf of itself and the Associated Industries of Massachusetts, this decision brings Massachusetts in line with 39 other states (including all New England states other than Rhode Island, which is silent on the question) that have embraced the doctrine. The Court agreed with NELF that the doctrine extends to consultations between counsel to parties to business transactions where there is a common legal interest and is not limited to the litigation context. The Court further agreed with NELF and others that no written agreement is necessary; it is the sharing of privileged communications between counsel to parties having a common legal interest that gives rise to the protection, not a writing. And one need not demonstrate a client’s knowledge of or consent to the sharing of the privileged communications. The Court also rejected an assertion by Hanover that the interests of the parties must be identical, rather than just common. The Court adopted an approach whereby one focuses on the general purpose for sharing of the communication such that an interest is “common” where parties “share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication.” Where defendants allege a joint effort to establish a common litigation defense strategy, they need only prove that the communications were made in the course of a joint defense effort, the statements were designed to further that effort, and the privilege has not been waived.
The decision provides considerable comfort to practitioners, who have been relying on trial court decisions recognizing the doctrine in the absence of appellate confirmation of its validity. With this question resolved, counsel to aligned businesses can comfortably engage in the coordination necessary to mount effective and thorough cases in multi-party litigation and to effectuate multi-party business transactions.
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