The conditions, scope and limits of the common defence or public interest privilege may vary considerably from one jurisdiction to another. State and federal courts differ as to whether they recognize a common defence or public interest privilege and to what extent such a privilege applies. Other jurisdictions have continued to interpret a common interest, but the risk remains that the courts may find that the interests of the parties are not sufficiently “common” or “common” to recognize a common defence agreement. The best way to proceed is to articulate common legal interests, including positions, defences and potential commitments. For example, documents in which Inpro`s process and licensing policies disclose revenue information have been protected as a work product. Justice Ward also ruled that, although these documents were passed on to third parties, there was no waiver of work product privilege, as the documents were subject to confidentiality agreements. The court ultimately ruled that such disclosure “does not significantly increase the likelihood that an adversary will come into possession of the materials. Id. at *17.
In Mondis Tech., Ltd. V. LG Elecs., Inc., the Eastern District of Texas reached a similar conclusion. No. 2:07-CV-565-TJW-CE, 2011 U.S. Dist. LEXIS 47807 (E.D. Tex.
May 4, 2011). Mondis was a limited liability company with the main shareholder Inpro, an IP holding company. Id. at *13. Inpro promoters recruited to follow licenses and disputes relating to its participations in the field of patents. Inpro disclosed confidential and privileged information to potential investors with confidentiality agreements. Traditional black law teaches that the presence of a third party or third party in an otherwise privileged communication waives privileges. However, the courts have found two exceptions to this rule: 1) when the third party participates to help a lawyer understand and interpret complex principles, and 2) when the third party is sufficiently integrated into the business to be treated as functionally equivalent to an employee. . . .