James Gray Wagner authored the article “A User’s Guide to the Common Interest Doctrine,” which was published by Massachusetts Lawyers Weekly on December 31, 2015.
An excerpt from the article is below. To read the full article, visit the Massachusetts Lawyers Weekly website.
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Lawyers and clients can no longer treat the attorney-client privilege with the old attitude of “leave it to the litigators.” That’s too late, and an unprotected disclosure may have just bought you a big headache. Moreover, these mistakes are eminently avoidable, with some basic precautions.
Imagine this common business scenario: Your client, MouseTech Inc., has developed several valuable patents. You advise MouseTech in licensing negotiations between MouseTech and Parker & Stone Co. During the negotiations, you disclose certain information or opinions concerning the enforceability of the patents to Parker & Stone’s counsel. MouseTech agrees to the terms of a licensing agreement that benefits both parties.
Then, several months down the road, Steel Systems Ltd. sues for patent infringement. During discovery, Steel Systems seeks to obtain information concerning the enforceability of MouseTech’s patents. Steel Systems argues that you (yes, you!) waived the attorney-client privilege for that information by sharing it with Parker & Stone’s counsel during the licensing negotiations.
In fact, if your disclosure was not protected by the common interest doctrine, Steel Systems may be able to side-step the privilege.
What could you have done? You could have taken some basic steps to cloak disclosures in the common interest privilege.