What Is A Common Interest Agreement



-April 14, 2021-

What Is A Common Interest Agreement

Mike Burroughs

Courts apply common interest privilege to both criminal and civil litigation and non-judicial contexts. In the context of the trial, communication between the defendants, between the complainants and even between the parties to the trial who, in certain circumstances, are involved in separate disputes may remain privileged. [4] It is important that most courts apply the prerogative of common interest to communication between the client and the client only when a lawyer is present or has directed the communication; [5] including communication between a client and another client`s lawyers, whether or not his or her own lawyer is involved. [6] However, some courts allow the right to stand when a member of a "client group" (i.e. clients, client representatives, lawyers and lawyers) exchanges communications, whether a lawyer is present or not. [7] At United States v. Shaeffler, for example, the second circuit attempted to examine whether the common interest of a group was sufficiently legal to justify the protection of the common interest. [28] In particular, in this case, Shaeffler Court conducted an analysis of the common interest in the context of trading and transaction transactions. Automotive equipment maker Shaeffler Group has reached an agreement with a banking group to finance a takeover bid for Continental AG`s stock. While the Shaeffler Group was considering acquiring a minority stake in Continental, the 2008 economic downturn led to a fall in Continental`s share prices before the end of the tender. As a result, the Shaeffler Group commissioned a consultant and an audit firm to restructure their debts and assess their tax implications, knowing that they would likely face a challenge from the IRS to its proposed tax plan.

In preparing for the IRS challenges, the Shaeffler Group shared preferred working products with the Bank as part of a common interest agreement. The IRS then submitted these documents, but the Shaeffler Group retained them on the basis of the Common Interest Agreement. A common defence agreement, which simply says that the parties are co-accused and want to exchange information, may not be enough to protect the privilege. Some courts are skeptical of efforts to hide behind a privilege that has been quashed and are reluctant to extend the privilege to third parties if there is no evidence that such an extension is warranted. The safest way is to identify the generally accepted differences between the two and to take steps to put in place applicable safeguards for communication that will be subject to the privilege that will inevitably exceed that between the individual clients and their lawyers. If left uncorrected, these differences can jeopardize all parties to the common defence agreement. An important provision of any common defence agreement is therefore to deal precisely with what happens when a party decides to denounce or abandon it. The courts are also distinguished by the need to harmonize the interests of the participants. For example, some courts found that interests that are not completely prejudicial triggered the privilege [10] some only needed a strong identity of interests, while others required identical interests. [12] Even though two parties have directly unfavourable interests in a case, the courts have extended the right to those parties where they share another common interest in a separate case. Communication, for example, was privileged: the concepts and predicates of an applicable common interest agreement are essentially similar to those of the common defence agreement.

These include real common interests that are sufficient to justify a derogation from the rules for waiving solicitor-client privilege.


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