Class actions quite frequently involve multiple defendants. In consumer class actions, manufacturers and distributors may both be named. In employment law class actions, successor entity employers may share time with a former employer. In such cases, it is often the case that the goal of beating back the plaintiff unifies defendants with divergent interests. Efforts to drive a wedge between allies of convenience can involve attempts to discover information that is shared between defendants. But California recognizes the "common interest" doctrine, which allows defendants' counsel to share information that relates to advancing their common goals in the litigation without waving the attorney work product "privilege." In Meza v. H. Muehlstein & Co., et al. (August 18, 2009), the Court of Appeal (Second Appellate District, Division Three) provided additional guidance as to the application of that doctrine.
In Meza, a personal injury action, the "common interest" doctrine was implicated when an attorney for one of many defendants was later hired by plaintiff's firm:
[D]efendant and respondent Lucent Polymers, Inc. (Lucent) moved to disqualify the Metzger Law Group (the Metzger firm) from representing plaintiff and appellant Teresa Meza. Lucent and other joining defendants argued that the Metzger firm should be disqualified because it hired Bret Drouet, an attorney who previously represented one of the defendants and who participated in meetings in which defense counsel disclosed privileged work product.
Slip op., at 2. The opinion reviews the basics of disqualification and the work product doctrine/privilege (the Court observes an issue about nomenclature that I have also noticed - the protection of work product is referred to as both a privilege and a doctrine - but offers only that the distinction is irrelevant because the protection is statutory). The part of the opinion that may be particularly relevant in class actiosn concerns the "common interest" doctrine. An extended excerpt is repeated here:
The protection offered by the attorney work product privilege can be waived if work product is disclosed to third parties. (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 891 (OXY).) However, “work product protection „is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney‟s work product and trial preparation.‟ ” (Ibid.)
Under the common interest doctrine, an attorney can disclose work product to an attorney representing a separate client without waiving the attorney work product privilege if (1) the disclosure relates to a common interest of the attorneys‟ respective clients; (2) the disclosing attorney has a reasonable expectation that the other attorney will preserve confidentiality; and (3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted. (See OXY, supra, 115 Cal.App.4th at p. 891.)
The common interest doctrine does not create a new privilege or extend an existing one. “Rather, the common interest doctrine is more appropriately characterized under California law as a nonwaiver doctrine, analyzed under standard waiver principles applicable to the attorney-client privilege and the work product doctrine.” (OXY, supra, 115 Cal.App.4th at p. 889.)
Meza does not dispute that California recognizes the common interest doctrine. She instead argues that under the facts of this case, the common interest doctrine does not apply.
Meza contends that because defendants had separate, dissimilar and at times adverse interests, defendants‟ attorneys could not disclose work product to each other without waiving the attorney work product privilege. This is incorrect. It is true that a defendant‟s attorney‟s disclosure of work product relating to the defendants‟ adverse interests results in a waiver of the attorney work product privilege. However, the disclosure of work product relating to the defendants‟ common interests does not result in a waiver so long as the second and third elements of the common interest doctrine are satisfied.
In this case, while all defendants had different and potentially adverse interests, they also indisputably had common interests. All defendants, for example, had common interests in Meza‟s medical condition, alleged discrepancies in her claims, and her presentation as a witness. Likewise, all defendants had common interests in anticipating and analyzing Meza‟s litigation strategies and in retaining joint defense consultants and experts. Furthermore, it is undisputed that defendants‟ attorneys disclosed work product to each other relating to the defendants‟ common interests. Accordingly, the first element of the common interest doctrine is satisfied with respect to all such disclosures.
Meza contends that defendants failed to submit any evidence establishing the second element of the common interest doctrine—defense counsel‟s reasonable expectation of confidentiality. We reject this argument because the trial court‟s CMC order expressly authorized defendants‟ attorneys to disclose to each other attorney work product relating to issues of common interest without fear of waiver. In light of the CMC order, defendants‟ attorneys reasonably expected that counsel for co-defendants would preserve the confidentiality of attorney work product disclosed in communications regarding common interests. The second element of the common interest doctrine is thus satisfied.
With respect to the third element, Meza argues that although the sharing of work product among defense counsel may have made the litigation more efficient, it was not reasonably necessary. Meza is again incorrect.
Substantial evidence supports the trial court's finding that communications among defense counsel were “reasonably necessary” for the accomplishment of the purpose for which defense counsel were retained. It is clear from the declarations submitted by defendants that defense counsel shared their confidential ideas about the case with each other in order to better prepare for trial. Accordingly, under the common interest doctrine, the attorney work product privilege was not waived.
Slip op, at 11-13 (footnotes omitted). The Court of Appeal also reviewd sealed documents that the trial court examined in camera; the Court of Appeal concluded that they supported the trial court's order of disqualification.
I've tried breaking past the "common interest" doctrine in the past, with no success. Meza confirms that I should keep my expectations of future success in this area on the low side.
