Despite litigants' and bar groups' valiant efforts to expand common interest doctrine protection to transactional settings, most courts limit that doctrine's protection to ongoing or anticipated litigation contexts. However, every now and then a court takes an expansive view.
In Eagle Forum v. Phyllis Schlafly's American Eagles, Case No. 3:16-cv-946-DRH-RJD, 2018 U.S. Dist. LEXIS 16618 (S.D. Ill. Feb. 1, 2018), the court addressed common interest doctrine protection for communications related to an ongoing trademark infringement action. Despite the litigation setting, the court explained that "[i]t is well settled that communications need not be made in anticipation of litigation to fall within the common interest doctrine" (citing a 2007 Seventh Circuit case). However, the court still rejected the doctrine's applicability to the communications at issue, holding that: (1) "for the doctrine to apply, the person with whom the privileged information is shared must have an identical – not merely similar – legal interest in the subject matter of the communication"; and (2) the communications "must be made in the course of furthering the ongoing, common enterprise" rather than just amounting to a "shared rooting interest in the successful outcome of a case" in which the participants simply favor one side rather than cooperate in a common legal strategy. Id. at *9. A few weeks later, the district court upheld the magistrate judge's "identical" interest analysis and conclusion – although the court did not address the magistrate judge's dicta about the common interest doctrine's application in non-litigation contexts. Case No. 16-0946-DRH, 2018 U.S. Dist. LEXIS 36393 (S.D. Ill. Mar. 6, 2018).
Litigants relying on the common interest doctrine must continue to be very wary of assuming that they can contractually avoid the waiver implications of disclosing privileged communications to third parties. Many – if not the majority of – cases reject the doctrine's applicability, by which time the participants have already waived their privilege protection by optimistically but erroneously relying on a common interest agreement or the doctrine to avoid a waiver.