Common Interest Agreement

IMPORTANT: This Agreement protects the confidentiality of communications shared among parties with a common legal interest. The common interest doctrine is an extension of—not a substitute for—attorney-client privilege and work product protection. Each communication shared must independently qualify as privileged or protected before this Agreement shields it from disclosure. Consult qualified counsel before executing. The doctrine does not protect communications made for the purpose of committing or planning a crime or fraud.

AGREEMENT INFORMATION

PARTIES AND PARTICIPATING COUNSEL

Party 1:
- Entity/Individual Name: [________________________________]
- Address: [________________________________]
- Counsel of Record: [________________________________]
- Counsel Firm: [________________________________]
- Counsel Email/Phone: [________________________________]

Party 2:
- Entity/Individual Name: [________________________________]
- Address: [________________________________]
- Counsel of Record: [________________________________]
- Counsel Firm: [________________________________]
- Counsel Email/Phone: [________________________________]

Party 3 (if applicable):
- Entity/Individual Name: [________________________________]
- Address: [________________________________]
- Counsel of Record: [________________________________]
- Counsel Firm: [________________________________]
- Counsel Email/Phone: [________________________________]

(Add additional parties using the Joinder Addendum attached as Exhibit B.)

COMMON INTEREST AGREEMENT

This Common Interest Agreement ("Agreement") is entered into as of [__/__/____], by and among the parties identified above (each a "Participant," collectively the "Participants") and their respective counsel of record (each "Participating Counsel," collectively "Participating Counsel").

RECITALS

WHEREAS, each Participant is represented by independent counsel in connection with the matter(s) described herein;

WHEREAS, Participants share a common legal interest in the outcome of the matter(s) described herein, within the meaning of Restatement (Third) of the Law Governing Lawyers § 76 and applicable federal and state common law;

WHEREAS, Participants wish to share certain privileged communications, attorney work product, and litigation strategy to advance their common legal interest without waiving applicable privileges or protections as to third parties;

WHEREAS, each Participant acknowledges that this Agreement does not merge their individual interests, does not create a joint representation, and does not eliminate the potential that Participants' interests may diverge in the future;

NOW, THEREFORE, in consideration of the mutual promises herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Participants agree as follows:

SECTION 1: DESCRIPTION OF COMMON LEGAL INTEREST

1.1 Matter Description

The Participants share a common legal interest arising from the following matter(s):

Primary Matter:
[________________________________]
[________________________________]
[________________________________]

Related Proceedings (if any):
[________________________________]

1.2 Nature of Shared Interest

The nature of the common legal interest shared by the Participants is (check all that apply):

☐ Defending against common claims or allegations in litigation
☐ Asserting common claims or causes of action in litigation
☐ Responding to governmental investigation or regulatory proceeding
☐ Coordinating strategy on overlapping legal issues in separate proceedings
☐ Pursuing common transactional objectives with shared legal exposure
☐ Responding to grand jury subpoena or criminal investigation
☐ Other: [________________________________]

1.3 Legal Basis for Common Interest

Under Restatement (Third) of the Law Governing Lawyers § 76(1), the Participants' common legal interest is (check all that apply):

☐ Legal (common legal positions, defenses, or claims)
☐ Factual (overlapping factual issues relevant to multiple Participants)
☐ Strategic (coordinated approach to litigation, investigation, or negotiation)

1.4 Interest Need Not Be Identical

The Participants acknowledge that their interests need not be identical; partial commonality of interest is sufficient to invoke this Agreement, provided the communication is shared in furtherance of the common aspect of the shared interest.

SECTION 2: SCOPE OF PROTECTED COMMUNICATIONS

2.1 Protected Communications

Subject to the conditions of this Agreement, the following categories of communications and materials, when shared among Participants and Participating Counsel, shall be deemed made within the scope of the common interest doctrine and shall not constitute a waiver of attorney-client privilege or work product protection as to third parties:

☐ Legal memoranda and analysis prepared by Participating Counsel
☐ Factual summaries and investigative reports prepared at counsel's direction
☐ Draft pleadings, motions, briefs, and correspondence
☐ Expert witness analyses and consultant reports
☐ Deposition preparation materials and witness interview summaries
☐ Discovery responses, privilege logs, and related strategy
☐ Settlement strategy and negotiation analysis
☐ Oral communications during joint defense meetings or conferences
☐ Written communications (email, letter, memorandum) among Participants and Participating Counsel
☐ Other: [________________________________]

2.2 Prerequisites for Protection

A communication is protected under this Agreement only if:

(a) It independently qualifies as attorney-client privileged or protected as attorney work product prior to being shared;

(b) It is shared in furtherance of the common legal interest described in Section 1;

(c) All persons present at or receiving the communication are Participants, Participating Counsel, or authorized personnel who have agreed to be bound by this Agreement; and

(d) It is not shared with any person or entity not bound by this Agreement.

2.3 Marking Recommendations

Participants are encouraged (but not required) to mark materials shared under this Agreement with the legend: "COMMON INTEREST — PRIVILEGED AND CONFIDENTIAL" or similar designation. Failure to so mark does not forfeit protection if the prerequisites of Section 2.2 are otherwise met.

SECTION 3: WHAT IS NOT PROTECTED

3.1 Exclusions from Protection

This Agreement does NOT protect:

(a) Pre-existing non-privileged information. Information that was not independently privileged before being shared under this Agreement does not become privileged by virtue of sharing it.

(b) Information shared with adverse parties. Any communication or information shared with persons or entities whose interests are adverse to any Participant is not protected.

(c) Crime-fraud exception. Communications made in furtherance of a crime or fraud are not protected. See Clark v. United States, 289 U.S. 1 (1933); In re Grand Jury Proceedings, 417 F.3d 18 (1st Cir. 2005). If Participating Counsel reasonably believes the crime-fraud exception applies, counsel has an obligation to cease participation in the common interest arrangement.

(d) Business advice and non-legal strategy. Information shared for business, commercial, or non-legal purposes, rather than for purposes of obtaining or providing legal advice, is not protected.

(e) Information in the public domain. Information lawfully available through public sources remains unprotected regardless of its inclusion in shared materials.

(f) Subsequent adverse proceedings. Under Restatement (Third) § 76(2), unless Participants agree otherwise in writing, communications protected by this Agreement may be used against a Participant in a subsequent adverse proceeding between Participants.

3.2 No Protection for Underlying Facts

This Agreement does not shield the underlying facts from discovery. Protection extends only to the communication of those facts in a privileged form. Participants may still be required to disclose facts through other discovery mechanisms.

SECTION 4: CONFIDENTIALITY OBLIGATIONS

4.1 Non-Disclosure to Third Parties

Each Participant and Participating Counsel shall:

(a) Maintain the strict confidentiality of all information shared under this Agreement;

(b) Not disclose such information to any person or entity not bound by this Agreement without the prior written consent of the Participant from whom the information originated ("Originating Participant");

(c) Take reasonable steps to safeguard shared materials from inadvertent disclosure, including maintaining secure file systems and limiting access to personnel with a need to know; and

(d) Promptly notify all other Participants and Participating Counsel of any inadvertent disclosure, unauthorized access, or third-party demand for production of shared materials.

4.2 Authorized Personnel

Shared materials may be disclosed within each Participant's organization to:

☐ Attorneys and paralegals at Participating Counsel's firm directly working on the matter
☐ In-house legal counsel
☐ Retained experts and consultants (subject to execution of Exhibit A)
☐ Officers, directors, and employees with a direct need to know
☐ Other authorized personnel: [________________________________]

All authorized personnel who receive shared materials must be informed of the confidential nature of the materials and agree to comply with the terms of this Agreement.

4.3 Compelled Disclosure

If any Participant or Participating Counsel is required by court order, subpoena, or other legal process to disclose information shared under this Agreement, that party shall:

(a) Promptly notify all other Participants of the demand, providing sufficient notice to allow intervention or seeking of protective orders, where practicable and not prohibited by law;

(b) Cooperate reasonably with other Participants' efforts to resist, limit, or quash the demand; and

(c) Assert all applicable privileges and protections before making any disclosure.

SECTION 5: NON-WAIVER AS TO THIRD PARTIES

5.1 Preservation of Privilege

The disclosure of privileged communications or protected work product among Participants and Participating Counsel pursuant to this Agreement shall not constitute a waiver of attorney-client privilege, work product protection, or any other applicable privilege or protection as to any third party, including but not limited to:

• Opposing parties in pending or future litigation
• Government agencies and regulatory bodies
• Grand juries
• The public

5.2 Assertion of Privilege

If any Participant receives a discovery request, subpoena, or inquiry seeking materials protected under this Agreement, all Participants shall cooperate in asserting applicable privileges and objections. The Originating Participant shall have the primary right and obligation to assert privilege over its own communications.

5.3 Federal Rule of Evidence 502

To the extent applicable, the Participants intend that this Agreement shall be construed to invoke the protections of Federal Rule of Evidence 502 against inadvertent waiver, and shall seek a court order under FRE 502(d) in pending litigation where feasible.

SECTION 6: USE RESTRICTIONS

6.1 Permitted Uses

Information shared under this Agreement may be used solely for the purpose of advancing the common legal interest described in Section 1.

6.2 Prohibited Uses

Information shared under this Agreement shall NOT be used:

(a) For any purpose adverse to any other Participant;
(b) In any proceeding in which any Participant is opposed to the Participant from whom the information was received, unless Participants have agreed otherwise in writing;
(c) For business intelligence, competitive advantage, or commercial purposes unrelated to the legal matter;
(d) In negotiations with third parties without the consent of the Originating Participant; or
(e) For any purpose other than advancing the common legal interest described herein.

6.3 Return or Destruction Upon Adverse Use

If any Participant intends to use information received from another Participant in a manner adverse to the Originating Participant, the using Participant shall:

(a) First provide written notice to the Originating Participant and all other Participants;
(b) Return or destroy all materials received from the Originating Participant; and
(c) Withdraw from this Agreement in accordance with Section 8.

SECTION 7: INDEPENDENT REPRESENTATION

7.1 Separate Counsel

Each Participant retains its own independent legal counsel. This Agreement does not:

(a) Create an attorney-client relationship between any Participant and another Participant's counsel;
(b) Constitute a joint representation by any counsel;
(c) Require any Participating Counsel to act contrary to that counsel's duties to their own client; or
(d) Limit any Participating Counsel's ability to advise their own client regarding whether and to what extent to participate in this common interest arrangement.

7.2 No Imputed Conflicts

Unless separately agreed in writing, this Agreement shall not, by itself, constitute a basis for disqualification of any Participating Counsel from representing their own client in proceedings adverse to other Participants, provided that:

(a) The adverse proceeding does not involve the subject matter of the common interest;
(b) No Participating Counsel has received confidential information from another Participant that is material to the adverse representation; and
(c) The adverse representation complies with applicable rules of professional conduct.

7.3 Independent Decision-Making

Each Participant retains the exclusive right to make strategic, settlement, and litigation decisions for itself. This Agreement does not require any Participant to subordinate its interests to those of another Participant or to follow joint strategy decisions with which it disagrees.

7.4 ABA Model Rules

Each Participating Counsel acknowledges their obligations under applicable rules of professional conduct, including ABA Model Rules 1.6 (confidentiality), 1.7 (conflicts of interest), and 5.4 (professional independence), and agrees that nothing in this Agreement modifies those obligations.

SECTION 8: WITHDRAWAL AND TERMINATION

8.1 Voluntary Withdrawal

Any Participant may withdraw from this Agreement at any time upon written notice to all other Participants and Participating Counsel. Withdrawal takes effect upon the earlier of:

(a) The date specified in the written notice; or
(b) If no date is specified, ten (10) days after delivery of the notice.

8.2 Effect of Withdrawal

Upon withdrawal:

(a) The withdrawing Participant shall promptly return or certifiably destroy all materials received from other Participants under this Agreement, except to the extent retention is required by law or applicable professional obligations;

(b) The withdrawing Participant's obligations of confidentiality with respect to information already received shall survive withdrawal indefinitely;

(c) Communications made prior to withdrawal remain protected under the common interest doctrine; and

(d) The withdrawing Participant shall not use information received under this Agreement adversely to any remaining Participant, except as permitted by Section 6.3.

8.3 Automatic Termination

This Agreement shall automatically terminate upon:

(a) Final resolution (including exhaustion of all appeals) of the matter(s) described in Section 1; or
(b) Written agreement of all remaining Participants.

8.4 Survival

The following provisions shall survive termination of this Agreement:
- Section 4 (Confidentiality Obligations)
- Section 5 (Non-Waiver as to Third Parties)
- Section 6.2 and 6.3 (Prohibited Uses; Return/Destruction)
- Section 9 (Subsequent Adverse Proceedings)

SECTION 9: SUBSEQUENT ADVERSE PROCEEDINGS

9.1 Default Rule

In accordance with Restatement (Third) of the Law Governing Lawyers § 76(2), unless the Participants expressly agree otherwise in this Section, communications protected by this Agreement are NOT privileged as between Participants in a subsequent adverse proceeding between them.

9.2 Election Regarding Subsequent Adverse Proceedings

The Participants elect the following treatment of shared communications in subsequent adverse proceedings between Participants (select one):

☐ Default Rule Applies: Communications shared under this Agreement may be used by any Participant against any other Participant in a subsequent adverse proceeding between them, consistent with § 76(2).

☐ Full Protection: Communications shared under this Agreement shall remain privileged even in subsequent adverse proceedings between Participants. Each Participant waives any right to compel disclosure of such communications in any proceeding between Participants.

☐ Limited Protection: Communications shared under this Agreement shall remain privileged in subsequent adverse proceedings, except as follows: [________________________________]

SECTION 10: ADDITION OF NEW PARTICIPANTS

10.1 Joinder Procedure

New parties may join this Agreement only upon:

(a) Written consent of all existing Participants;
(b) Execution of a Joinder Agreement in the form attached as Exhibit B; and
(c) Representation by independent counsel who agrees to be bound by this Agreement.

10.2 Effect of Joinder

Upon execution of a Joinder Agreement, the new Participant shall be bound by all terms of this Agreement as of the date of joinder. New Participants are not entitled to receive materials shared among existing Participants prior to the date of joinder without the written consent of the Originating Participant.

SECTION 11: STATE-SPECIFIC CONSIDERATIONS

11.1 California

Under California Evidence Code § 912(d), disclosure to a third party pursuant to a common interest does not constitute waiver of privilege where the holder of the privilege had a reasonable expectation that the disclosure would remain confidential. California courts have recognized the common interest doctrine in both civil and criminal contexts. OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (2004).

11.2 New York

New York recognizes the common interest privilege as an extension of the attorney-client privilege where parties share a common legal interest. The parties must demonstrate that the communications were made to further that shared legal interest. Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016) (confirming doctrine applies in civil context but requiring active litigation or imminent litigation in some formulations).

11.3 Texas

Texas recognizes the joint defense/common interest privilege for parties sharing a common legal strategy. TEX. R. EVID. 503(b)(1)(C) extends attorney-client privilege to joint client and representative communications. Counsel should confirm current Texas court interpretations.

11.4 Florida

Florida recognizes the common interest doctrine under Florida Evidence Code § 90.502. Parties must share a common interest in the litigation or legal matter, and communications must be made in furtherance of that interest.

SECTION 12: GENERAL PROVISIONS

12.1 Governing Law

This Agreement shall be governed by the laws of [________________________________], without regard to conflict of law principles. In federal court proceedings, federal common law of privilege shall apply to the extent required.

12.2 Venue

Any disputes concerning the interpretation or enforcement of this Agreement shall be resolved in [________________________________].

12.3 Entire Agreement

This Agreement, together with any Exhibits, constitutes the entire understanding among the Participants regarding the common interest doctrine and supersedes all prior agreements, representations, and understandings relating to the subject matter hereof.

12.4 Amendments

This Agreement may be amended only by a written instrument signed by all Participants or their Participating Counsel on their behalf.

12.5 Counterparts and Electronic Signatures

This Agreement may be executed in counterparts, each of which shall be deemed an original. Electronic signatures (including DocuSign and PDF signatures) are expressly authorized and shall have the same legal effect as original ink signatures.

12.6 No Waiver of Individual Rights

Nothing in this Agreement limits any Participant's right to independently assert or waive privileges on behalf of itself, subject to the use restrictions of Section 6.

12.7 Severability

If any provision of this Agreement is found to be unenforceable or invalid, the remaining provisions shall remain in full force and effect.

SIGNATURE BLOCKS

By signing below, each Participant and its counsel acknowledge they have read, understand, and agree to be bound by the terms of this Agreement.

PARTY 1:

Party Name: [________________________________]

By (Authorized Representative): [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Counsel for Party 1:

Attorney Name: [________________________________]

Firm: [________________________________]

Bar Number: [________________________________]

Signature: [________________________________]

Date: [__/__/____]

PARTY 2:

Party Name: [________________________________]

By (Authorized Representative): [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Counsel for Party 2:

Attorney Name: [________________________________]

Firm: [________________________________]

Bar Number: [________________________________]

Signature: [________________________________]

Date: [__/__/____]

PARTY 3 (if applicable):

Party Name: [________________________________]

By (Authorized Representative): [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Counsel for Party 3:

Attorney Name: [________________________________]

Firm: [________________________________]

Bar Number: [________________________________]

Signature: [________________________________]

Date: [__/__/____]

EXHIBIT A — ACKNOWLEDGMENT BY AUTHORIZED PERSONNEL

I, [________________________________], acknowledge that I have read the Common Interest Agreement dated [__/__/____], among [________________________________] (the "Participants"), and I agree to be bound by the confidentiality and use restriction provisions thereof with respect to any materials I receive under that Agreement.

Signature: [________________________________]

Printed Name: [________________________________]

Title/Affiliation: [________________________________]

Date: [__/__/____]

EXHIBIT B — JOINDER AGREEMENT

[Name of Joining Party] ("New Participant") hereby joins the Common Interest Agreement dated [__/__/____] ("Agreement") and agrees to be bound by all terms and conditions thereof as if a signatory to the original Agreement. New Participant is represented by [________________________________] ("Joining Counsel"), who also agrees to be bound by the Agreement.

Joining Party:

Signature: [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Joining Counsel:

Signature: [________________________________]

Firm: [________________________________]

Date: [__/__/____]

Consented to by Existing Participants:

Participant 1 Signature: [________________________________] Date: [__/__/____]

Participant 2 Signature: [________________________________] Date: [__/__/____]

SOURCES AND REFERENCES

• Restatement (Third) of the Law Governing Lawyers § 76 (Common Interest Arrangements)
• Upjohn Co. v. United States, 449 U.S. 383 (1981) (scope of attorney-client privilege)
• United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989) (joint defense privilege)
• Cal. Evidence Code § 912(d)
• OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (2004)
• Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016)
• ABA Formal Opinion 08-450 (common interest arrangements)
• American Bar Association, "The Common Interest Privilege," The Brief (2020-21)