The common-interest doctrine sometimes protects as privileged communications between separately represented clients sharing an identical legal interest in ongoing or anticipated litigation. It differs dramatically from a joint representation, in which the same lawyer represents multiple clients. In that setting, the privilege presumptively protects essentially all of their legally related communications, and does not require anticipated litigation.
In Loh Xiao Han v. Interexchange, Inc., Southern District of New York Judge Jennifer Rochon examined communications among several individual plaintiffs under the common-interest doctrine — noting the requirement of a ” ‘common legal interest,’ ” and explaining that ” ‘possible future litigation’ ” (not just “actual litigation in progress”) satisfied that standard. Case No. 1:23-cv-07786 (JLR), 2025 U.S. Dist. LEXIS 94185, at *15 (S.D.N.Y. May 16, 2025) (citations omitted). But the court introduced the issue by explaining that plaintiffs relied on “the common-interest doctrine because they were communications between co-plaintiffs, all of whom are represented by common counsel” (later repeating that they were “co-litigants represented by the same counsel”). Id. at *4, *13.
The court’s individual assessments of withheld documents’ privilege protection do not appear to have been affected by these joint clients’ mistaken reliance on a more challenging privilege standard than necessary. They may have dodged the bullet for now, but this should be a wake-up call for other clients and especially lawyers.
