“Common Interest Privilege” Prevents Discovery (Freedom Marine Sales)

A common interest (photo by Marilyn Swanson)

The common interest privilege (also known as the joint defense doctrine) applies in all courts throughout these United States, including bankruptcy courts.

Rules governing the common interest privilege vary from state to state and among federal district, circuit and other courts, but the gist of the privilege is the same throughout:

it applies when parties to a lawsuit, who have separate attorneys, want to work jointly in the lawsuit because their interests align; but
they want communications with and between their attorneys to remain confidential—as an extension of the attorney client privilege.

Here’s an opinion that applies the common interest privilege to prevent discovery of communications between attorneys for separate parties:

In re Petition of Freedom Marine Sales LLC, Case No. 8:23-cv-2890 in U.S. District Court for Middle Florida (decided October 31, 2025; Doc. 275).

What follows is a summary of this Freedom Marine opinion to illustrates how the common privilege interest works.

Facts

Freedom Marine owns a boat and allows Cornell to borrow the boat.

During Cornell’s use of the boat, it collides with a vessel that is owned by Mackey and occupied by a family of Passengers.

So, the Freedom Marine files this admiralty lawsuit, seeking exoneration from, or limitation of, liability for the accident.

In the admiralty lawsuit, Mackey and the Passengers assert claims against Freedom Marine for negligently entrusting the boat to Cornell.

Mackey is an attorney representing himself in the lawsuit.

Mackey and the attorney for the Passengers discuss a joint litigation strategy because their interests align on certain issues in the lawsuit, including their discovery strategy.

Motion to Compel

Freedom Marine seeks to compel Mackey to produce Mackey’s private communications (and the records of his communications) with attorneys for the Passengers.

Order

The District Court declares:

“Pending before me” is Freedom Marine’s motion to compel Mackey to produce; and
“I deny the motion.”

What follows is a summary of the Court’s denial rationale.

Legal Standards

–Rules 1 & 26(b)(1)

The common interest privilege arises from the combined action of Rule 1 and Rule 26(b)(1) of Fed.R.Civ.P.

Rule 1 requires the Court “to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Working in concert with Rule 1 is Rule 26(b)(1), which limits discovery to:

“any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

–Common Interest Privilege

A common-interest privilege exists to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.

The privilege requires only “a substantially similar legal interest,” rather than a “complete unity of interests” among the participants and may apply where the parties’ interests are adverse in substantial respects.

–Burden of Proof

There is no binding authority as to which party bears the burden of demonstrating that the requested discovery falls within the scope of Rule 26(b).

Generally, for example, courts find that the party seeking the discovery bears at least some initial burden of demonstrating its relevance. Illustrative statements from various opinions include:

the requested discovery must “appear relevant on its face” before “the party objecting to the discovery based upon relevance has the burden to show the requested discovery is not relevant”;
“The party seeking production must demonstrate that the request is relevant . . . .”; but
“The party resisting production of information bears the burden of establishing lack of relevancy or undue burden in supplying the requested information.”

A party who refuses to produce discovery on the basis of privilege bears the burden of establishing that privilege. For example:

one opinion places the burden on the party invoking the privilege; and
another opinion specifies that the “burden of establishing the common interest privilege is on the party asserting it.”

–Writing Requirement?

A common interest agreement need not be in writing.

Applying the Standards

At least a portion of the communications between Mackey and the Passengers’ attorneys would be privileged.

Here, Mackey and the Passengers share a legal interest because they have brought the same claim of negligent entrustment against Freedom Marine.

And so, their communications about litigation strategy are privileged and cannot be obtained in discovery.

Conclusion

A very interesting and helpful opinion.

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