Protecting Common-Interest Privilege And Work-Product Protections: Guidance From Recent Decisions

Published date15 October 2021
Subject MatterLitigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Disclosure & Electronic Discovery & Privilege
Law FirmWilmerHale
AuthorMr David Gringer and Isley Gostin

Two recent decisions from Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware address common-interest and attorney work-product protection issues that arose in the bankruptcy case of In re Imerys Talc America, Inc., No. 19-10289 (Bankr. D. Del.).1 Those decisions delineate the interests (and concomitant privilege and work-product protections) of certain parties in Chapter 11 cases, and their reasoning provides instructive guidance on those often misunderstood issues outside of bankruptcy as well.

To determine whether parties share a common interest or whether the exchange of documents between two parties waives work-product protection, courts will evaluate whether the parties are adverse. Where the parties may be adverse on some issues but not on others, courts will likely conduct the inquiry'and evaluate whether communications are protected by privilege or work product'on an issue-by-issue basis. And in determining adversity, courts will likely look at the parties' actual legal rights and interests, not just the legal rights and interests the parties have elected to pursue.


Prior to filing bankruptcy, Imerys Talc America, Inc., and certain affiliates (collectively, Imerys or the Debtors) mined, processed and distributed talc, which they sold to Johnson & Johnson for use in its baby powder. Imerys and Johnson & Johnson were named as defendants in thousands of personal-injury lawsuits claiming that Johnson & Johnson's baby powder and/or talc mined by Imerys caused cancer. On February 13, 2019, Imerys filed for Chapter 11 in the US Bankruptcy Court for the District of Delaware with the goal of addressing those liabilities. During the course of the Chapter 11 case, Imerys reached agreements with the Official Committee of Tort Claimants (TCC) and the court-appointed future claimants' representative (FCR) regarding the establishment of a trust that would assume Imerys's talc personal-injury liability and use trust assets to pay those claims in accordance with trust distribution procedures (TDPs). The Debtors, TCC and FCR also reached settlements with the Debtors' parent (Imerys S.A.) and certain former affiliates and insurers, the proceeds of which would be contributed to the trust. In 2020, the Debtors, TCC, FCR and Imerys S.A. (collectively, the Plan Proponents) proposed a Chapter 11 plan of reorganization (Plan) incorporating and seeking approval of these agreements and settlements. Johnson & Johnson and certain talc claimants objected to confirmation of the Plan and sought discovery in support of their objections from the Debtors, TCC, FCR, Imerys S.A. and other parties. Those parties opposed some of the discovery sought, arguing that the materials were privileged or subject to attorney work-product protection and that communications among the parties had not waived any such privilege or protection because the parties had a common interest.

Letter Opinion I

Judge Silverstein's first Letter Opinion addressed communications among the Plan Proponents. Summarizing the common-interest doctrine, the court explained:

The common interest doctrine is an exception to the general rule that disclosure of a communication to a third party destroys any attendant privilege. In other words, the...

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