Earlier today, Judge Burke unsealed an interesting order addressing the applicability of the common-interest doctrine to communications between a generic pharmaceutical company and its API manufacturer.
No attorneys directly participated in most of the underlying communications, but the defendants argued that they shared "a common legal interest" with their API manufacturer in avoiding a lawsuit "and that their communications furthered that interest." Although Judge Burke found that this "argument has some initial, superficial appeal[,]" in that "the subject of these communications is in some sense legal in nature[,]" he concluded that any shared legal interest came too late:
when one contextualizes the communications with regard to what was happening in the relevant time period, Defendants have not met their burden to demonstrate that [Defendants] and [the API manufacturer] then shared a common legal interest.
After concluding that the prospect of "a common legal interest was too remote, contingent and uncertain" at the time the communications were made, Judge Burke emphasized an important practice point for parties seeking to invoke the common-interest doctrine:
Indeed, for similar reasons, courts have indicated that in order to demonstrate the existence of a common legal interest, the party with the burden should either point to evidence of an existing written agreement between it and the third party that relates to the disclosure, or failing that, at least cite to some other evidence indicating that a common legal interest had been solidified at the relevant time. And in the absence of that type of evidence, various courts (including this Court) have repeatedly concluded that no common legal interest had been formed between such parties.