New York Court of Appeals

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New York Court of Appeals upholds limitation on common-interest privilege

June 09, 2016

The New York Court of Appeals reversed the order of the New York Appellate Division, First Department, concluding that “the policy reasons for keeping a litigation limitation on the common interest doctrine outweigh any purported justification for doing away with it, and therefore [we] maintain the narrow construction that New York courts have traditionally applied.”

U.S. Chamber files amicus brief

March 17, 2016

The U.S. Chamber filed a joint amicus brief with the Association of Corporate Counsel urging the Court of Appeals for the State of New York to affirm a decision of the First Department that applied the common-interest privilege to shield legal advice that two companies shared pursuant to a merger agreement because the two companies shared a common legal interest even absent a specific expectation of litigation. The brief argues that limiting the common-interest privilege to situations of anticipated litigation will discourage businesses from obtaining and sharing legal advice that enables them to comply with the law. The brief also argues that a rule limiting the common-interest privilege to litigation would discourage corporate transactions in New York, as counsel will be wary of advising clients to share materials with counterparties to a transaction if doing so might waive otherwise valid privilege.

Jonathan G. Cedarbaum and Leon T. Kenworthy of Wilmer Cutler Pickering Hale and Dorr LLP served as counsel for the amici.

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