Illinois Appellate Court Recognizes Common Interest Exception to the Waiver of Attorney-Client and Work-Product Privilege

On December 7, 2017, the Illinois appellate court for the First District in Selby v. O’Dea et al., held that co-litigants in a case who agree to share information with each other pursuant to their common interest in the litigation do not waive either the attorney-client privilege or work-product privilege. Although many federal and other state courts have recognized this “common interest” or “joint defense” doctrine, and certain states have codified this doctrine by statute, no Illinois appellate court had previously recognized such doctrine in Illinois.

Generally, confidential communications between an attorney and a client in connection with a client seeking legal advice or the attorney’s representation of the client are privileged. Attorney work-product—material prepared by or for a party in preparation for trial that contains the theories, mental impressions or litigation plans of the party’s attorney—is also privileged under Illinois law. The attorney-client privilege and work-product privilege, however, are typically waived if the client or attorney discloses privileged information to a third party. Co-parties to litigation often have a common interest in the case and want to share information or meet together to discuss litigation strategy. Without the law’s recognition of a common interest exception, co-parties risk waiving the attorney-client privilege or work-product privilege in such communications.

In Selby, the plaintiffs filed a class action following a number of subrogation lawsuits filed by State Farm Mutual Auto Insurance Company, through its attorney, James M. O’Dea. The plaintiffs in the class action claimed that State Farm and O’Dea were involved in a scheme to obtain fraudulent default judgments against them in the subrogation lawsuits by failing to comply with Illinois service of process rules. State Farm and O’Dea objected to certain discovery requests related to communications between State Farm, O’Dea, and their attorneys after the filing of the class action lawsuit on the grounds that such communications were protected by a “joint defense privilege”.

The Court examined the history of common interest and joint defense doctrines recognized by other jurisdictions and ultimately adopted the modern trend of recognizing the doctrine as an exception to the waiver rule of the attorney-client and work-product privilege, rather than an independent privilege. In its discussion, the Court noted the purposes of the common interest exception, including that it offers parties the possibility for better legal representation by making more information available to parties, promotes communication among co-parties, and promotes efficiency of trial preparation and trial itself by limiting redundancy in questioning and argument. The Court held that the common interest exception to the waiver rule applies to the statements made to further the parties’ common interest, pursuant to a common interest agreement: (i) by an attorney for one party to the other party’s attorney; (ii) by one party to the other party’s attorney; (iii) by one party to its own attorney, if in presence of the other party’s attorney; and (iv) from one party to another, when attorneys are present.

The Selby case provides important guidance to attorneys and litigants on how they may share information with co-parties without waiving a privilege. If you have any questions regarding this recent decision or the application of the common interest exception under Illinois law, please contact Levin Ginsburg at (312) 368-0100.