On July 21, 2014, the New Jersey Supreme Court issued its opinion in O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014), adopting a broad application of the common interest doctrine for communications covered by both the attorney-client and attorney work product privileges. In doing so, the Court adopted the formulation of the doctrine previously articulated in LaPorta v. Gloucester County Board of Chosen Freeholders, 774 A.2d 545 (N.J. Super Ct. App. Div. 2001).
The O'Boyle case arose out of a request for public records pursuant to the New Jersey Open Public Records Act ("OPRA"). Among the public records sought were a joint strategy memo and a compendium of documents that were sent to an attorney for the Borough of Longport by a private attorney representing residents and a former member of the Borough's planning and zoning board in litigation brought by O'Boyle. The documents were exchanged so the two attorneys could consider whether to cooperate in the defense of existing and anticipated litigation brought by O'Boyle, a Longport resident who had a history of suing the Borough. The Borough refused to provide these documents to O'Boyle, claiming they were privileged, and O'Boyle then filed suit to compel their production.
The trial court dismissed the complaint on the grounds the requested documents were not public records subject to the OPRA or the common law right of access. The Appellate Division assumed the records were public records, but held they were privileged work product and that the common interest doctrine applied to the sharing of information between the private attorney and the Borough attorney.
In affirming the Appellate Division, the New Jersey Supreme Court rejected more conservative formulations of the common interest doctrine, such as requiring complete identity of interests with those to whom the privileged information is disclosed, a threat of actual litigation, or "that the common interest be legal rather than purely commercial." Instead, the Court held that the common interest doctrine in New Jersey applies "to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest, and the disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties."
The Court emphasized that the interests of the parties sharing the information do not need to be identical, all that is required is a common purpose. For example, the sharing of information does not have to occur in connection with a single legal action to remain privileged. Sharing of information between attorneys who have a common adversary will be protected even if the actual or anticipated litigation is not the same. The Court also held that the doctrine is not limited to communications between counsel. As long as there is a common interest, communications between counsel for one party and the representative of another party will preserve the privilege. Moreover, the Court held that the doctrine is broad enough to cover the sharing of privileged information between attorneys who share a common purpose when the intent of the communications is to decide whether to enter into a common interest arrangement.
The Court did not address whether protection under the common interest doctrine requires a written agreement, and written agreements are generally not required. However, having a written common interest or joint defense agreement can assist in demonstrating the existence of the common interest, provide evidence of those actions taken to preserve the confidentiality of the disclosed information, and help avoid later disputes between the parties exchanging the information. Points that should be included in a common interest agreement are:
- The identity of the subject matter covered by the agreement;
- A description of the common interest that the parties share;
- Agreement that the information shared between the parties shall remain privileged and that it shall not be disclosed to others without the consent of all parties to the agreement;
- Agreement that all parties to the agreement will take actions to ensure that the disclosed information remains confidential;
- Agreement that the shared information shall be used only for those purposes identified in the agreement;
- Procedures to be followed if any party to the agreement receives a request or demand for the shared information;
- Agreement that any privileged information provided under the agreement will be returned upon the request of the party who provided the information; and
- Whether the common interest protection may be asserted by one party to the agreement against another party if they later become litigation adversaries.
The parties to the agreement may also want to consider a provision that counsel to the parties shall not be disqualified from representing their current client in subsequent litigation or proceedings between the parties as a result of the agreement or receipt of any information under the agreement.
The opinion in the O'Boyle case can be found here.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, any of its affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.