A JDA is created by parties with common interests to coordinate strategies, pool resources, share information, reduce costs, and maintain a unified front while maintaining the privileges of the lawyer, client, and work product. This is a written agreement, although in some states it does not appear to be an absolute requirement for the application of a JDA. Many states recognize the important political benefits of extending privileges within a group by allowing clients to communicate freely and confidentially when seeking legal advice. It can be the best protection against unwanted risks such as abandonment of inside information, blame, exorbitant costs and excessive time. While the common interest is a useful privilege that should be used appropriately in a number of circumstances, it is also a privilege that should be exercised with caution. Conclusion The privilege of the work product serves a very useful purpose in our legal system. Since distinct differences have been established between the product of factual work and the product of opinion work, privilege as it exists today encourages the efforts of lawyers and others to protect and promote the interests of their clients in litigation by protecting the individual right to privacy. At the same time, it promotes the cause of justice in any event by allowing litigants, in certain circumstances, to obtain an actual work product that is relevant and necessary to make a fair and correct judgment on the merits of each case. Under the exception, protection is not lost when it is discussed among those who have a “common interest in the process.” See Visual Scene v.
Pilkington Brothers, 508 So.2d 437 (Fla.3d DCA 1987). The reason for the exception is twofold: persons with a common interest should be able to express themselves freely to promote respect for the law and the administration of justice, and persons with a common interest are likely to have an equally strong interest in keeping information confidential. These privileges are so deeply entrenched in law that Florida has codified them in Section 90.502 of Florida Law (Solicitor-client Privilege) and Florida Rule of Civil Procedure 1,280(b)(4) (work product). The idea that these privileges are destroyed when an otherwise privileged communication or work product is passed on to third parties is also ingrained in the minds of most practitioners. While this is generally true, there is one important exception: the common interest. In particular, the common interest of the parties may not be static during a dispute, and just because the parties have a common interest at any given time does not mean that the common interest exists at all times. In other words, the parties may have a common interest at the beginning of the dispute, and then, as the dispute progresses, their respective interests may diverge. In addition, the doctrine of common interests, also known as the doctrine of aggregate information or the doctrine of common defence, provides an exception to the waiver of privileges in the voluntary disclosure of inside information to third parties. United Services.
Automobile Ass`n c. Law firms of Herssein and Herssein, P.A., 233 So.3d 1224, 1231 (Fla.3d DCA 2017); Visual Scene, Inc.c. Pilkington Bros., plc., 508 So. 2d 437, 440–43 (Fla.3d TCA 1987) (information exchanged between two parties in the common interest remains privileged with the exception of the common interest); see also Progressive Exp. Dans. Co. v. Scoma, 975 So. 2d 461, 468–70 (Fla. 2d DCA 2007) (repeal of the order requiring disclosure of communications under the doctrine of the common interest); Asplundh Tree Expert Co.
v. Barnes, 689 So. 2d 1200, 1200–01 (Fla. 4th DCA 1997) (Communication between the defendant`s counsel and the co-defendant`s president was privileged under the doctrine of common interests against waiver of solicitor-client privilege). In fact, the common interest may even extend to the parties on either side of the “v”, i.e. to a plaintiff and a defendant in a multiparty case. As long as the parties have common ground and are not completely detrimental, communication between them and their lawyers is privileged over common problems. The common interest doctrine allows parties who share common interests to share privileged information in order to properly prepare their case without losing the protection afforded by solicitor privileges and work product. According to the doctrine of common interests, clients and their respective lawyers who share common interests in litigation may freely exchange information among themselves without fear that their exchange will deprive them of the protection of solicitor-client privilege. Id. This should not be confused with the legal waiver of the common interest of privileges, which requires the Court to examine communications relating to another issue in order to determine whether the common customers in this case had common interests such that a client involved in the communication did not have an adequate basis for preserving the confidentiality of the communications of the other client.
Kegel v. Culverhouse, 687 So. 2d 888, 891–93 (Fla. 2d LOAC 1997) (firm-to-firm review order to file discovery of two joint clients under the legal waiver of the common interest, as the trial court did not distinguish from waiver of communications at other times for other matters). Although often referred to as a separate privilege, the common interest (sometimes called common defense or bundled information) is really only an offshoot of solicitor-client privilege and the labor product doctrine. This is an exception to the rule that protection is lost when the content of the conversation or otherwise privileged work product is passed on to third parties. .