Teamwork Can Sometimes Make The Dream Work: How To Properly Maintain The Protections Of Common Interest Doctrine In North Carolina

• Published date: 08 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Ward and Smith, P.A.
• Author: Ms Payton R. Collier and Donalt Eglinton

Parties to a lawsuit often find themselves on the "same side of the courtroom" as other entities or individuals. In these instances, where a party is one of multiple (or many) co-plaintiffs or co-defendants, it is often advantageous to work collaboratively while navigating the legal battleground presented by litigation.

When done correctly, the principles of common interest doctrine protect the confidentiality of information and communications exchanged in a collaborative effort. However, to maintain this protection, lawyers for each party must proceed with extra caution. This article will review the landscape of common interest doctrine in North Carolina and provide practice tips to help keep lawyers and their clients within the bounds of its guardrails.

Common Interest Doctrine in North Carolina

The doctrine of common interest allows parties with a shared legal interest to preserve confidentiality while collaborating in pursuit of their joint interest. The doctrine is most frequently utilized in lawsuits with multiple defendants. Typically, the defendants will enter into an agreement that is intended to facilitate the joint or collective exchange of documents, to communicate about strategy, and to otherwise coordinate on litigation activities such as discovery. Common interest doctrine is an exception to the waiver of attorney-client privilege that, without the agreement, very probably results when such information or communications exchanged between an attorney and client are disclosed to a person who is a stranger to the relationship. When applicable and properly used, the common interest doctrine effectively extends the attorney-client privilege to the parties to the agreement. SCR-Tech, LLC v. Evonik Energy Servs. LLC, 2013 WL 4134602, *6 (N.C.B.C. 2013) ("the common-interest doctrine extends the protection of the attorney-client privilege only to communications between parties sharing a common interest about a legal matter."); Friday Invs., LLC v. Bally Total Fitness of the Mid-Atl., Inc., 247 N.C. App. 641, 648, 788 S.E.2d 170, 177 (2016) ("common interest doctrine does not recognize an independent privilege, but is 'an exception to the general rule that the attorney-client privilege is waived upon disclosure of privileged information [to] a third party.'") (citing United States v. Schwimmer, 892 F.2d 237, 243'-46 (2d Cir. 1989).

A party seeking to avail itself of the benefit of the common interest doctrine must: "(1) share a common [legal]...