Although the doctrine of common interest is probably more often invoked and used by procedural lawyers than by transaction lawyers, some of the first cases of common interest concerned communication between the parties to a commercial negotiation. See STI Outdoor v. Superior Court, 91 Cal. App. 4th 334, 340 (2001) (“We are not satisfied that solicitors` privilege is limited to procedural disclosure).; OXY Resources, at 889 (“The need to exchange inside information may occur during the negotiations of a business transaction.”). While communications outside of litigation may be placed under the heading of the doctrine of common interest, such communications must be shared for legal and non-commercial purposes. These agreements generally explain that the parties have a “common legal interest” and that they do not waive their legal privilege by exchanging information. I`m quite unenthusiastic about these types of agreements, because if your client actually has a “common legal interest” with someone else, the law says that the client does not waive their privilege by giving the party information about the common interest that is covered by the privilege. On paper, saying that a client has a common legal interest with another party does not create such an interest if it did not exist at all.
A JDA is a written agreement between parties who are represented separately with common legal interests (typically with respect to ongoing or anticipated litigation) that allows the parties to share confidential information without waiving attorney privilege, work product privilege, or any other applicable privilege. Under California and federal law, attorneys` privilege is generally waived through voluntary disclosure to independent third parties. See z.B. Because v. Inv./Indicators, Research &Mgmt., Inc., 647 F.2d 18 (9th Cir. 1981); Callus. Evid. Code 912. The protection of work products may also be abandoned by disclosure, but only if the disclosure is totally incompatible with the objective of protection.
See Raytheon Co. v. Superior Court, 208 Cal. App.3d 683, 689 (1989); Nidec Corp. v. Victor Co., 249 F.R.D. 575 (N.D. Cal. 2007). And if you remove the discussion about Oregon, it`s interesting to note that a court applying Oregon law to Krug`s actual circumstances would likely have achieved the same result as Krug`s court.
As already stated, OECD 503 does not extend the privilege of a lawyer to communication between the co-accused themselves. . . .