One Lawyer. Two Plaintiffs. Separate Lawsuits. Plaintiffs’ Communications Privileged?

It is not uncommon for a single lawyer to represent two or more plaintiffs in separate lawsuits against one defendant.  If these plaintiffs–clients confer jointly with their lawyer, does the attorney–client privilege protect these discussions from discovery?

In a decision that properly distinguishes the joint–client doctrine and the common–interest doctrine, the USDC for Connecticut held—yes.  Supreme Forest Prods., Inc. v. Kennedy, 2017 WL 120644 (D. Conn. Jan. 12, 2017).  You may read the decision here.

Two Plaintiffs.  One Lawyer.

Michael Kennedy and Ferrell Welch retained attorney Michael Reilly to sue their employer, Supreme Forest, for wrongful discharge. Mr. Reilly filed separate lawsuits on Kennedy and Welch’s behalf.  During these lawsuits, Kennedy and Welch jointly participated in meetings with Reilly.

Supreme Forest later filed a separate action against Kennedy and Welch alleging the Kennedy and Welch’s secret tape-recordings of Supreme Forest employees gave rise to several state-law causes of action.  In discovery, Supreme Forest sought communications from Kennedy and Welch’s joint meetings with attorney Reilly. More…

Common–Interest Doctrine Does Not Protect Asset Purchase Agreement between Two Corporate Plaintiffs

The USDC SDNY ruled that the attorney–client privilege and common–interest doctrine do not protect from discovery an Asset Purchase merger-and-acquisitionAgreement between two parties that later became co-plaintiffs in a patent-infringement suit.  The court issued this ruling even though the APA contained a provision outlining the sharing of settlement or judgment proceeds, allocation of decisional authority, and distribution of costs in an anticipated patent-infringement action.  AU New Haven, LLC v. YKK Corp., 2016 WL 6820383 (SDNY Nov. 18, 2016).   You may read the decision here.

Common–Interest Doctrine: Identical Legal Interest Required?

The court reviewed current law on the scope and application of the common–interest doctrine, correctly noting that it is an exception to privilege waiver.  The doctrine applies when the More…

Indemnification Clause in Asset Purchase Agreement Does Not Invoke Common–Interest Doctrine 1

In a matter of first impression, a North Carolina appellate court ruled that an Asset Purchase Agreement’s indemnification provision did not create a “tripartite attorney–client relationship” Indemnificationamong the contracting parties and counsel sufficient to invoke the common-interest doctrine and protect attorney communications from disclosure.  Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., 2016 WL 3156239 (N.C. Ct. App. June 7, 2016).  You may read the decision here.

Background

Bally leased space for its health club operations, but later sold the health club and assigned the lease to Blast Fitness Group.  The Asset Purchase Agreement between Bally and Blast contained an indemnification provision.

The lessor later sued Bally (but not Blast) for unpaid rent, and Blast agreed to defend Bally pursuant to the Asset Purchase Agreement.  When the lessor requested post-suit correspondence between Bally and Blast, Bally sought a protective order claiming that the attorney–client privilege protected the correspondence from disclosure.

Tripartite Relationship

Bally claimed that the privilege covered the communications because Bally, Blast, and its lawyers held a “tripartite attorney–client relationship” sufficient to invoke the attorney–client privilege under the common–interest doctrine.  A tripartite relationship most commonly exists when an insurance company retains counsel to represent an insured. More…