In determining whether the doctrine of the common interest applies, California courts consider three elements. First, the exchanged communication or the document itself must be privileged or protected by the doctrine of the work product under a legal privilege (. B, for example, solicitor-client communication or marital privilege). Second, the party who shared the preferred communication or protected document must have a reasonable expectation that it will be treated confidentially. However, even communications shared with a large group can be protected by the doctrine of the common interest when the lawyer has taken steps to ensure confidentiality, such as.B. instructing recipients to keep the information confidential. See Seahaus La Jolla Owners Ass`n v. Superior Court, 224 Cal. App.
4th 754, 774 (2014) (Communications of lawyers of the owners` association, shared at a meeting of all owners, were protected by a common interest). Third, communication must be shared in order to advance the purpose of counsel`s consultation. See OXY Resources, 894th documents shared between the company and the investor and not protected by a common defence lien: In nidec Corp. v. Victor Co., 249 F.R.D. 575 (N.D. Cal. 2007), the applicant requested access to documents that the defendant had shared with a potential investor on the defendant`s patents. The Tribunal rejected the defendant`s argument that the documents had been disclosed for a common legal interest. Since the investor would probably not end up as a defendant in litigation, the court found that the seller had shared counsel`s advice to justify a commercial interest and not a legal interest. Id.
at 580. (”[T]he purpose was designed not to lead to a common defence in this litigation, but to promote a commercial transaction in which the parties have conflicting interests, if at all.” However, the court found that if the documents are qualified as a work product under federal law, the fact that they were shared with the investor would not necessarily render them untraceable. While this may give the negotiating parties some leeway, counsel should bear in mind that the protection of Federal labour products applies only to materials prepared for litigation. Fed. R. Civ. Proc. 26 (b) (3) (A). In California, on the other hand, the work product doctrine also applies to non-judicial documents prepared by lawyers. See State Comp.
In the. Fund v. Sup. Ct., 91 Cal. App. 4th, 1080, 1091 (2001). Various practical consequences arise from the fact that California recognizes a doctrine of common interest and not a privilege for common defence. First, an authorisation protocol should not identify documents as being protected solely by a ”common interest” but rather identify applicable authorizations or cite the doctrine of the work product. See OXY Resources, 894 (mandatory creation of documents purported only protected by the ”privilege of the common interest”). Second, if the common interest is not obvious (for example. B if parties sharing privileged communications on the basis of their ”common interest” are adversaries), the courts can verify that the documents have been disclosed for common legal purposes and even order a camera check.