This note discusses the common interests privilege – a unique legal derivative of the attorney-client and work-product privilege from disclosure of information and documents under subpoena or discovery. The common interests privilege, also known as the joint defense privilege or pooled information privilege, is an exception to waiver of confidentiality after disclosure to technical third parties. If you have questions about the common interests privilege, joint defense privilege, or pooled information privilege, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

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As a general rule, litigation strategy and pre-suit litigation preparation, attorney work-product and its derivative communication and investigations, attorney-client communications, and settlement communications are privileged and not subject to disclosure. § 90.502, Fla. Stat. (2023) (privilege); Huet v. Tromp, 912 So. 2d 336, 339–340 (Fla. 5th DCA 2005) (documents, reports, and videotapes generated by investigators were protected from discovery by the work product privilege); Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258, 1260 (Fla. 3d DCA 1989) (business owner’s investigators are not proper fact witnesses);  Alachua Gen. Hosp. v. Zimmer USA, Inc., 403 So. 2d 1087, 1088 (Fla. 1st DCA 1981) (“It is clear that communications, reports, memoranda, etc., prepared in anticipation of litigation and passing between a client and his attorney, and/or their employed investigators, are work product. An investigator cannot properly be required, in a discovery deposition, to reveal the contents of such communications or reports relating to the circumstances”).

Yet, that privilege can be waived by disclosure to third parties.

The common interests, joint defense, and pooled information exception to the general rule of waiver of attorney-client privilege enables litigants and their respective attorneys who share common litigation interests to exchange information freely among themselves without fear that by their exchange they will forfeit protection of privilege. Visual scene, Inc. v. Pilkington Bros., plc., 508 So. 2d 437, 440 (Fla. 3d DCA 1987) (quashing order to produce communications between distributor and processor). 

The common interests exception applies where the parties, although nominally aligned on the same side of the case, are antagonistic as to some issues, but united as to others. Visual at 441.  Even if two groups later become antagonists in litigation, they would nonetheless be able to protect their prior shared confidences from disclosure to third parties. Id. 

The privilege applies even when there is no joint defense agreement and even when no attorney for either party is involved in the communication. Rockis v. Schneider, 2024 WL 756185, *3 (M.D. Fla. Feb. 23, 2024) (common interest privilege applies even when no attorney involved); AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., 160 So. 3d 510, 512 (Fla. 2d DCA 2015) (common interest privilege applies even where the two groups do not have a written agreement for a joint defense).

If you have questions about the common interests privilege, joint defense privilege, or pooled information privilege, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.