There Is No “Imminent Litigation” Requirement for the Application of the “Common-Interest Privilege”—Documents Generated During Merger Negotiations Among Two Corporations and Their Counsel May, Therefore, Be Protected by the Privilege, Which Is an Exception to the Rule that the Presence of a Third Party at a Communication Between Counsel and Client Destroys the Privilege

The First Department, in a full-fledged opinion by Justice Moskowitz, determined that the “common-interest privilege” may apply to documents created during merger negotiations among two corporations and their counsel.  The court found there is no requirement that litigation be imminent for the application of the privilege.  The underlying lawsuit was brought by a financial-guaranty insurer (Ambac) which alleged it was fraudulently induced by Countrywide to insure residential mortgage backed securities. Ambac sought discovery of documents relating to a merger between Countrywide and Bank of America Corporation (the subject of secondary claims by Ambac) which, it was alleged, would demonstrate Bank of America Corporation was on notice about Countrywide's alleged fraud. The First Department held that the merger-related documents could be protected by the common-interest privilege and sent the matter back to the motion court to determine whether particular documents are protected:

As noted above, the common-interest privilege is an exception to the rule that the presence of a third party at a communication between counsel and client will render the communication non-confidential … . The doctrine, a limited exception to waiver of the attorney-client privilege, requires that: (1) the communication qualify for protection under the attorney-client privilege, and (2) the communication be made for the purpose of furthering a legal interest or strategy common to the parties … . This Court has never squarely decided whether there is a third requirement: that the communication must affect pending or reasonably anticipated litigation. We answer that question today in the negative. Ambac Assur Corp v Countrywide Home Loans Inc, 2014 NY Slip Op 08510, 1st Dept 12-4-14