In Waymo LLC v. Uber Techs., Inc., the Northern District of California held that the doctrine of the common interest could not be invoked without a common legal interest. 2017 WL 2694191, `8 (N.D. Cal. June 21, 2017). In Waymo, Uber, Otto and Leandowski negotiated the sale of Otto to Uber for millions of dollars. During this process, the parties shared confidential information under the aegis of a common defence agreement. However, the common defence agreement was cancelled because the parties negotiating an agreement reject each other and cannot be characterized as a common legal interest in the case. Id. In the end, the party attempting to assert privileges must prove that at the time of disclosure, the third party was related to the party in a common legal case. In other words, the common legal case cannot occur after the communication of the communications and the common legal case cannot have expired when the communications were made. Therefore, in order to use the common interest prerogative, it is wise for the parties to reach an agreement on the nature of the relationship, the common legal cause and the resulting litigation.
In addition, it may be useful for a party, even if it is not always practical, to initiate litigation before exchanging communications with third parties. Communication between an advisor (or other third party) and a client may be protected by solicitor-client privilege if the advisor is an “intermediate gap” between a lawyer and a client. Garrett v. Metropolitan Life Ins. Co., 1996 U.S. Dist. LEXIS 8054 (S.D.N.Y. June 11, 1996) (Bernikow, Mag. J.), adopted, 1996 U.S.
Dist. LEXIS 14468 (S.D.N.Y. Oct 2, 2, 1996). However, it is essential that communication between the advisor and the client be made for the explicit purpose of obtaining the assistance of a lawyer. In re G-I Holdings, Inc. 218 F.R.D. 428, 434 (D.N.J. 2003). In addition, the consultant must be considered the “functional equivalent” of an employee of the client company.
Viacom, Inc. v. Sumitomo Corp. (In re Copper Mkt Antitrust Litig.), 200 F.R.D. 213, 218-20 (S.D.N.Y. 2001). The definition of an advisor as a “functional equivalent” of a company employee depends on whether the advisor is acting for the company and has the information that lawyers need to provide legal advice. In re Grand Jury Subpoenas, 995 F. Supp.
332, 340 (E.D.N.Y. 1998). And the purpose of consulting-client communication must first and foremost be to seek legal advice – not for commercial purposes. In re Ford Motor Co., 110 F.3d 954, 965 (3d Cir. 1997); United States: Rockwell, Int`l, 897 F.2d 1255, 1264 (3d Cir. 1990); Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J.
1990). Courts have generally been cautious in applying solicitor-client privileges to communication between clients and external consultants. See Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 437 (W.D.N.Y. 1997); See also United States Postal Service v.
Phelps Dodge Refining Corp., 852 F. Supp. 156, 159 (E.D.N.Y. 1994); Federal Trade Commission v. TRW, Inc., 202 U.S. App. D.C. 207, 628 F.2d 207, 212 (D.C.Cir.
1980) As a purely legal matter, the common privilege of the defence is a bad name, for it is not really an affirmative privilege; Rather, it is an exception to the exemption granted to the exemption. In general, the disclosure of privileged and confidential information to third parties constitutes a waiver of privilege.
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