TORT REPORT: Common interest privilege allows free flow of communication

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By Matthew Rosek

There may be times in litigation or pre-litigation settings where discussions between the attorneys or parties to a lawsuit that have similar interests in the litigation may claim a privilege as to the content of the conversations. The privilege is known in Wisconsin as the common interest privilege and is codified in Wis. Stat. § 905.03(2).

The common interest doctrine is principally an evidentiary device that allows separate parties who share a common legal interest to share attorney-client privileged information without waiving the attorney-client privilege. The common interest doctrine in practice allows a party to share information about its case with another similarly aligned party without risking the disclosure of said information to the opposing party.

The statute’s purpose is to allow the free flow of communication between parties that have a common interest in a matter. This does not mean that all matters discussed in the course of litigation between parties that have some common interest will be privileged. Only those matters where a common interest exists will be privileged.

For instance, if an engineer and contractor are sued by a building owner for negligence in the design and completion of a structural component of a building and both the engineer and the contractor believe the work they completed was done properly; they will have a common interest in the defense of that matter.

However, if there is an additional allegation of deviation from the plans by the contractor in another area of the building, and the engineer takes issue with the contractor on that area, the privilege would not apply to that portion of the claim so long as the previously disclosed privileged information is not revealed.

Once invoked, the common interest privilege is difficult to later waive. If parties enter into a common interest agreement and disclose confidential information to another similarly aligned party, there is the potential that a party could discover information adverse to its position.

Once the disclosure has occurred under the common interest doctrine, however, it cannot later be unilaterally waived.

Thus, a party may enter into an agreement to freely share information with another party only to find out that that party was in fact the party liable or responsible for the lawsuit being instigated.

If this happens, the information cannot be disclosed as the information gleaned was discovered pursuant to the common interest doctrine. The disclosing party would invoke the privilege and demand that any evidence or testimony related to the disclosure be stricken.

This doctrine is principally used by co-defendants in order to share information. Plaintiffs, third-party defendants and other intervening parties may also have an interest in the use of this privilege.

The use of the common interest privilege can assist a party in the defense of a case. Certainly, discovery of previously unknown information can greatly assist a party in a lawsuit. Use the privilege cautiously, though, as it can be used to prevent the disclosure of information that may benefit you.

Matthew Rosek is a senior associate at McCoy Law Group SC, Waukesha. The firm has a civil litigation practice that includes insurance defense, construction dispute and commercial/business litigation.