In Cotter v. Eighth Judicial Dist. Court of Nev., 416 P.3d 228, the Nevada Supreme Court addressed whether a party waives the work-product privilege if work product is provided to a third-party. The Court’s examination of the facts in the case led to the adoption of the Common Interest Rule allowing attorneys to share their work product with third parties that have a common interest.
The Court’s recognition of the Common Interest Rule has long been anticipated as it was widely accepted in numerous other jurisdictions. For the rule to apply, the “transferor and transferee [must] anticipate litigation against a common adversary on the same issue or issues” and “have strong common interests in sharing the fruit of the trial preparation efforts.” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299. Further, the Court held a written agreement was not required to preserve the privilege and the rule was not limited to co-parties. In such situations, information shared between the separate but common interest parties would remain privileged.
However, the Court did create a caveat whereby the privilege would likely be waived. The Court held that waiver of the privilege would likely occur when the privileged material is disclosed to an adversary. Specifically, the privilege is waived “when ‘it has substantially increased the opportunities for adversaries to obtain information.’” Cotter , 416 P.3d at 231 (quoting 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2024, at 532 (3d ed. 2010)).
For information about the holding and its impact, please contact Thomas Maroney in LGC’s Las Vegas office.