The common interest doctrine can sometimes protect as privileged communications between separately represented clients who share an identical legal interest in litigation, or in anticipation of litigation. But satisfying this standard isn’t easy – about half of such efforts fail.
In Life Fitness, LLC v. Forward Motion Pictures, LLC, 2025 U.S. Dist. LEXIS 22579, No. 2:24-mc-00494 DC CKD (E.D. Cal. Feb. 7, 2025), a third party targeted by plaintiff with a document subpoena claimed that it shared a common interest with the defendant – with whom it had entered into a transaction conveying ownership of the pertinent intellectual property. Rejecting the common interest doctrine’s application, the court quoted an earlier case in explaining that the doctrine only applied to communications “in pursuit of a joint strategy in accordance with some form of agreement” – rather than just a “shared desire to see the same outcome in a legal matter.” Id. at *21 (citations omitted).
Some courts denying common interest protection in this circumstance cleverly call this only an insufficient “rooting interest.” But in other circumstances, the common interest doctrine can be surprisingly broad – as explained in next week’s Privilege Point.
