ACC supports the position that the common interest doctrine does not require that both parties be represented by an attorney.
WASHINGTON (November 7, 2018) — The Association of Corporate Counsel (ACC), a global legal association representing more than 45,000 in-house counsel employed by over 10,000 organizations in 85 countries, recently requested to file an amicus brief supporting a petition for a writ of mandamus to the United States Court of Appeals for the Federal Circuit, to support the position that the common interest doctrine does not require that both parties be represented by an attorney. ACC was joined by the National Association of Manufacturers and Illumina, Inc. in its filing.
In the case, The Regents of the University of California, et al. v. Affymetrix, Inc. et al., Affymetrix and Life Technologies collaborated on the development of dyes. During discovery, the plaintiffs asked the District Court to compel certain emails between an Affymetrix employee and Affymetrix’s in-house counsel, with a Life Technologies employee cc’d. Affymetrix and Life Technologies argued that the common interest doctrine applied and that the inclusion of the Life Technologies employee did not waive privilege. However, plaintiffs asserted that because Life Technologies was not represented by counsel during the collaboration, the common interest doctrine did not apply. The District Court agreed.
The common interest doctrine is an exception to the rule that any party that discloses privileged communication to a third party waives attorney-client privilege. Whether both parties must be represented by counsel for the exception to apply is ambiguous. No federal circuit court has specifically addressed the matter, and the district courts have produced differing interpretations.
ACC and amici find the uncertainty over the common interest doctrine’s possible requirement of counsel for all parties troubling. In its brief, ACC details how a separate-counsel requirement contravenes the policy reasons for the doctrine and would have a deleterious effect on business invention and innovation. A separate counsel requirement would discourage collaborative initiatives, and would favor large companies over small companies, which sometimes lack the funds to retain counsel.
“ACC represents counsel for thousands of businesses, large and small,” said Mary Blatch, associate general counsel and senior director of advocacy at ACC. “Joint ventures, partnerships, and other common-interest agreements are crucial for these companies to continue innovate and grow. These partnerships add incalculable value to the American economy, and it’s critical that the law protect them unambiguously.”
Definitively excluding a separate-counsel requirement would benefit large corporations as well as small, since their counsel can rest assured of their partner’s understanding of applicable laws or regulations.
The brief is available here.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organizations through information, education, networking, and advocacy. With more than 45,000 members in 85 countries employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.