New Jersey Supreme Court Formally Adopts and Defines the Scope and Application of the Common Interest Rule

In a matter of first impression, the New Jersey Supreme Court in O’Boyle v. Borough of Longport expressly adopted the common interest rule in New Jersey as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders. Although previously addressed and analyzed by lower courts within New Jersey, the Court’s ruling clarifies the boundaries of the rule and offers guidance in resolving the scope of its application.

Mr. O’Boyle, a private citizen, filed several lawsuits against the Borough of Longport, planning and zoning members, and borough residents. A private attorney representing a planning and zoning board member and two borough residents sought to engage in a joint defense with the municipal attorney with respect to the lawsuits that Mr. O’Boyle had filed and might later file against their clients. To that end, the private attorney prepared and sent to the borough attorney a joint strategy memorandum and CDs containing a number of documents that had been selected by the private attorney. While the opinion is unclear whether a joint defense arrangement was ever consummated, the memorandum and the CDs were later returned to the private attorney, without the borough keeping copies.

Later, Mr. O’Boyle filed an OPRA request seeking, in part, the materials exchanged between the private attorney and the municipal attorney. The borough withheld the joint strategy memorandum and the documents on the accompanying CDs because, among other reasons, the documents were privileged. Mr. O’Boyle thereafter filed a verified complaint against the borough seeking access to the withheld documents under OPRA and New Jersey’s common law right of access. The trial court dismissed the case with prejudice, and the Appellate Division affirmed.

Analyzing, for the first time, the common interest rule with a nod toward OPRA and the common law right of access (as the facts of the case required), the New Jersey Supreme Court noted that documents otherwise accessible under either right of access (and in general) may be shielded from disclosure through the attorney-client privilege and the work-product doctrine. Looking to the common interest rule, the Court reviewed the rule’s previous application and scope in New Jersey and beyond before concluding that it “permits disclosure of privileged material, attorney-client confidential communications or work product, to third parties without waiving any privilege as long as the applicable features of the common interest rule in the jurisdiction are satisfied.”

In reaching this conclusion, the Court determined that the applicable features of the rule in New Jersey are those articulated in LaPorta. That decision set forth the following applicable features for the common interest rule to apply as an exception to waiver of confidential attorney-client communications and work product:

• disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest;
• disclosure is made in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure to adverse parties;
• disclosure may occur prior to the commencement of litigation;
• communications between counsel for one party and a representative of another party with a common interest will preserve the privileged nature of the disclosed information (i.e., need not be counsel);
• the common interest need not be identical; a common purpose will suffice;
• the common purpose extends to sharing of trial preparation efforts between attorneys and a common adversary;
• attorneys need not be involved in the same litigated matter or anticipated matter; and
• the rule should be broad enough to encompass the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement.

Parties and their counsel should be mindful of these newly affirmed features of the common interest rule as it may be a valuable tool in setting forth preventing the disclosure of strategic and other important communications with one’s adversary in both the criminal and civil contexts. So long as counsel and other representatives adhere to the boundaries set forth in LaPorta, as adopted by the New Jersey Supreme Court, such information should not be discoverable under the attorney-client privilege and work product doctrine.