The common interest doctrine can sometimes protect as privileged communications between separately represented clients. But litigants seeking the doctrine’s protection face many hurdles and often fail.
In Acrisure, LLC v. Kelly, Case No. 1:24-cv-318, 2025 U.S. Dist. LEXIS 53172 (W.D. Mich. Mar. 5, 2025), plaintiff insurance company sued several of its former employees and the competing company they joined after leaving. The defendants claimed privilege protection for their predeparture communications, but the court rejected their common interest doctrine argument, holding that: (1) all but one of the individual defendants were unrepresented, which made the doctrine unavailable; and (2) although the individuals and their new employer shared a “common business interest” before the employees left Acrisure, “their legal interests [were] not similarly aligned” — because the individuals faced fiduciary duty and employment restrictions while still working at Acrisure. Id. at *12-15.
Although acknowledging that the individuals “expected to be sued upon their departure from Acrisure,” the court inexplicably appeared to apply the harsh privilege waiver standard rather than the more generous work product waiver standard in ordering production of the predeparture communications. Id. at *15. The defendants’ lawyers likely made the common mistake of myopically focusing on privilege rather than also analyzing the hardier work product protection.
