The common interest doctrine holds that otherwise privileged attorney-client communications, exchanged between two separately represented parties or their counsel for the purpose of pursuing a joint legal strategy, are privileged from discovery by third parties. The doctrine is an exception to the general rule that conducting an attorney-client communication in the known presence of a third party, or disclosing it to a third party after the fact, destroys or waives any attorney-client privilege that might otherwise attach.
Recently, in Ambac Assurance Corporation v. Countrywide Home Loans,1 the Court of Appeals held that the existence of a joint legal strategy is a necessary, but not sufficient condition, for applying the common interest doctrine. Reversing the Appellate Division, First Department, the Court of Appeals held that the existence of actual or anticipated litigation is additionally required in order for the doctrine to apply. In so holding, the Court of Appeals declined to follow several other federal and state courts that had eliminated such a requirement.
