EDVA Judge Holds Email Not Protected by "Common Interest" Rule

Per In re: OutsideWall Tire Litigation (E.D. Va. July 6, 2010):

In their motion to compel, plaintiffs sought testimony from Harjeev Kandhari, a managing agent of the Al Dobowi defendants, concerning an e-mail exchange between nonparty Sam Vance and Harjeev Kandhari, In an e-mail dated March 10, 2007, Vance—who then as now worked as a consultant for the Al Dobowi defendants—-informs Surender Kandhari that he is required to submit answers to interrogatories in connection with then-pending litigation against him in a Florida court, and asks, "Have you heard anything from the Attorneys?" and, further, "Is it O.K. to turn in the answers??" The e-mail chain reflects that the message thereafter is forwarded to Harjeev Kandhari, and he states, "We are still waiting for our attorneys who have all the files," but he also says, M] only noticed one thing—please do not mention the names of Al Dobowi or any of the family members anywhere in your deposition. He has not [sic] right to ask anything about us." The final e-mail in the chain is from Vance to his attorney, Scott Peterson, in which Vance forwards the underlying e-mail correspondence with the note, "FYI."

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It follows from these conclusions [that the communications were not privileged in the first instance and that they were not protected work product] that the so-called "common interest privilege"does not protect the e-mail communication betwen Vance and Kandhari. This is so because it "is 'more properly identified as the common interest rule,'" for it does not create a privilege where one does not otherwise exist. In re Grand Jury Subpoenas 89-3 & 89-4, 902 F.2d 244, 249 (4th Cir. 1990) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)). Instead, the rule is an exception to the ordinary principle that a privilege is waived when the confidential information is shared with a third party in circumstances where the third party "'shares] a common interest about a legal matter.'" Id (quoting Schwnmmer, 892 F.2d at 243-44). Thus, the common interest rule "presupposes the existence of an otherwise valid privilege," id., the absence of which is fatal to a claim that evidence is privileged and therefore inadmissible.