In general, when a party shares communications or information protected by the attorney-client or work product privilege with a third party, the privilege is waived.  However, in many jurisdictions, if this sharing occurs when there is anticipated or actual litigation, a “common interest” exception allows parties to disclose privileged information amongst themselves while still preserving the privilege against disclosure to their adversaries.  On Monday, the New Jersey Supreme Court in O’Boyle v. Boro. of Longport, No. A-16-12, 2014 WL 355874 (N.J., July 21, 2014), expressly adopted this “common interest” rule (also often referred to as the “joint defense privilege”) so that parties to litigation in New Jersey can share privileged communications and information without the risk of destroying the underlying privilege. 

The case involved a request to the Borough of Longport by a local citizen, Martin O’Boyle, for certain documents under New Jersey’s Open Public Records Act, or OPRA.  Under OPRA, governmental entities must produce public records and documents, but can withhold documents that are subject to a recognized privilege, including the attorney-client and work-product privileges.  Some of the documents O’Boyle requested were prepared by a private attorney representing a former planning and zoning board member and two local residents.  The private attorney had shared certain strategy memos and other documents with Longport’s municipal counsel in order to prepare a joint defense to litigation they anticipated would be filed by O’Boyle challenging certain zoning and land development decisions. 

In deciding O’Boyle’s challenge to Longport’s withholding of the documents, the New Jersey Supreme Court expressly adopted the elements for the common interest rule that were articulated in a 2011 Appellate Division decision, LaPorta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J. Super 254 (App. Div. 2011), which held that the common interest rule protects privileged information that is “shared among counsel for different parties if (1) the disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties.”  In affirming that the LaPorta common interest rule is the law of the land in New Jersey, the Court noted that “[t]he common interest rule is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose.  It offers all parties to the exchange the real possibility for better representation by making more information available to craft a position and inform decision-making in anticipation of or in the course of litigation.”

Importantly, and despite the emphasis on pending or anticipated litigation, the New Jersey Supreme Court made clear that parties sharing privileged information need not be involved in the same litigation for the common interest to apply nor must their interests in the dispute be identical.  Rather, the test is broadly whether the parties sharing privileged information had a “common purpose” at the time that the documents or communications were shared.  The common interest protection is also not limited to sharing that occurs between the parties’ attorneys – otherwise protected communications and information exchanged by other party representatives can also be protected under the common interest rule. 

Finally, the third element of the common interest rule – that the disclosure is made in a way to preserve confidentiality and prevent disclosure to other parties – most commonly takes the form of a joint defense agreement or similar document that articulates the common interest and sets forth ground rules for sharing the privilege information amongst the parties; however, the New Jersey Supreme Court indicated that such an agreement is not necessarily required so long as the parties make their disclosures in a way to protect the underlying privilege. 

Applying this framework, the New Jersey Supreme Court affirmed the Appellate Division’s dismissal of O’Boyle’s challenge and ruled that Longport’s decision to withhold the information exchanged between the private counsel and municipal attorney was proper. 

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