Minnesota Supreme Court Recognizes the Common-Interest Doctrine: Best Practices to Mitigate Risk for Your Company
September 30, 2022
In a decision that protects third-party sharing of attorney-client privileged information and attorney work product when a common legal interest exists, the Minnesota Supreme Court released its opinion on Sept. 28 in Energy Policy Advocates v. Ellison, formally recognizing the common-interest doctrine in Minnesota.
Maslon attorneys Erica A. Holzer and the late David F. Herr represented the Minnesota State Bar Association as amicus curiae in the case, arguing in support of the doctrine. The common-interest doctrine (sometimes referred to as a “joint defense agreement”) is an exception to the general rule that disclosure of attorney-client privileged information or attorney work product to a third party waives the protection of the privilege. In June 2021, the Minnesota Court of Appeals held that the common-interest doctrine was unavailable in Minnesota because it had not been previously recognized by the legislature or the Supreme Court.
In Energy Policy Advocates, the Supreme Court held that the common-interest doctrine applies when:
- (1) two or more parties, (2) represented by separate lawyers, (3) have a common legal interest, (4) in a litigated or non-litigated matter, (5) the parties agree to exchange information concerning the matter, and (6) they make an otherwise privileged communication in furtherance of formulating a joint legal strategy.
The doctrine protects both attorney-client privileged information and attorney work product, and it is not limited to active litigation. However, the common-interest doctrine does not apply to “a purely commercial, political, or policy interest.” The party asserting the protection has the burden of demonstrating a common interest that is legal in nature, and bears the risk of disclosure if a court determines that other non-legal interests predominate.
Although not strictly required, before exchanging protected information with another party, it is a best practice to draft a detailed written agreement that defines the scope of the parties’ common interest and the types of documents and information that will be shared. The agreement should also address any conflicts that may arise, including how to unwind the agreement if the parties become adverse to each other.
It is also important to remember that application of the common-interest doctrine varies by jurisdiction. Minnesota’s formulation of the doctrine is generally consistent with most state and federal jurisdictions, but parties should be careful about which jurisdiction’s procedural rules may apply when sharing information with other parties.
Waiving the attorney-client privilege or work-product doctrine can be detrimental, so it is essential to be proactive and cautious when communicating with third parties.
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Maslon attorneys continue to follow developments in the law to best represent you and your business, and have the knowledge and expertise to navigate issues related to the attorney-client privilege and work-product doctrine. Please contact us for further advisement.