An Illinois appellate court has formally recognized what both state and federal courts have already considered to be the law—that coparties to a lawsuit who agree to share information pursuant to a common interest in defeating their opponent do not waive either the attorney-client or work-product privilege when they do so.1Parties may object to disclosing these communications when sought by the opposing side in discovery.2 The necessity of this holding as a matter of first impression may come as a surprise to many practitioners who already regularly assert the joint defense privilege in Illinois state courts. The Selby court recognized that “a lot of practitioners and judges will be surprised to learn that [the joint defense privilege] has not already been recognized in Illinois.”3 The doctrine has implicitly existed in federal courts sitting in Illinois for decades, and practitioners have routinely asserted the defense in both state and federal tribunals.4 But although federal courts have conclusively stated that Illinois state law recognizes the joint defense privilege, Selby is the first Illinois appellate court case to finally do so.5
Although Selby is a case of first impression, its holding is nothing new. Selby’s value, rather, is in the clarity it provides with respect to the privilege’s scope—what the joint defense privilege is and, of equal importance, what it is not. Headings recognizing the joint defense privilege may tempt practitioners to interpret and apply the privilege more broadly than its protections actually afford. But Selby’s 130–page opinion reveals precisely 1) what communications and 2) whose communications are protected by its holding.
What communications are protected? Also referred to as the “common-interest exception,” the joint defense privilege is based on the codefendants’ mutually shared interest in defeating a plaintiff’s claims against them.6 Thus, the mere status as codefendants does not confer carte blanche protections to all of the codefendants’ communications. Where the defendants are alleged to have conspired against the plaintiff, as in Selby, or where principles of respondeat superior or joint and several liability apply, there is no question that the codefendants share a common defense strategy (“if you lose, I lose”). But take the example of a products liability action where the first named codefendant, the designer-manufacturer, has claimed that the codefendant distributor introduced any defect in the product. These codefendants’ interests diverge (“if you lose, I win”), and the privilege does not apply. Where Codefendant A points the finger at Codefendant B, their communications will be discoverable.
Selby also clarified that, though the parties’ interests need not be fully aligned on every issue, there must be some common interest for the joint defense privilege to apply, and only communications in furtherance of that common interest will be protected.7 Selby adapted the “overwhelmingly accepted” lenient approach to the required amount of commonality between the parties, citing favorably to a federal case where the codefendants’ communications were protected due to their shared interest in discrediting a particular witness even though their positions were incompatible in other respects.8 When approaching an action that consists of several claims, where the codefendants’ interests align on some claims and diverge on others, only communications related to the codefendants’ shared interest will be protected. In such cases, attorneys should consider using specific email subject lines and providing detailed privilege logs to demonstrate that any withheld communications concern only those common interests.
Whose communications are protected? The joint defense privilege also does not protect all codefendant communications at all times. This is because the joint defense privilege is not actually an independent basis of “privilege” at all, but rather an exception to the waiver on privileges.9 The underlying privilege is the attorney-client privilege or work-product doctrine. The joint defense “privilege” provides an exception to the general rule on waiver that communicating with third parties (codefendants) destroys these privileges. The nomenclature is more than a mere formality; its practical effect is to limit the scope of the joint defense “privilege.” For instance, two codefendants may unambiguously qualify as “joint defendants” with a “common interest,” but their communications are only privileged when made in the presence of an attorney. The privilege does protect communications from one client to the other client’s counsel, whether or not his or her counsel is present.10
With regard to timing, Selby refused to decide whether the joint defense privilege extends beyond actual litigation and protects communications shared before, at the threat of litigation, or after the lawsuit has concluded.11 And while the clients’ consent is, as always, ethically required before an attorney may share his or her information, Selby refused to decide whether a confidentiality agreement is required for its holding to apply.12
Practical Takeaways from Selby: Selby provides a reminder to litigants not to assume that their status as codefendants automatically protects any and all communications. Reminding clients—then reminding them again—that client-to-client communications are not protected is important. In light of Selby, attorneys can take steps with the aim of ensuring that the privilege applies when it should, including being intentional with email subject lines and limiting telephone or in-person communications to aligned claims where the parties share a partial common defense strategy. The parties, as those in Selby, may also consider entering into a formal confidentiality agreement at the outset of litigation, whether oral or in writing. Regardless, it can be helpful to confer at the outset of litigation to reach a mutual understanding as to the claims for which the parties share a common defense strategy and how they will share information regarding those claims.