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The Bankruptcy StrategistFeaturesBankruptcyDiscoveryLaw Firm Client Relationships

Asserting the Common Interest Doctrine In Plan-Related Discovery

By Francis J. Lawall and Marcy J. McLaughlin Smith
April 01, 2021

The common interest doctrine creates an oftentimes frustrating exception to the general rule that disclosure of information to a party outside of the normal attorney-client relationship destroys privilege. Essentially, it extends the attorney-client privilege and the work product doctrine so that, in certain situations, privileged communications and documents may be shared with third parties without waiver when the parties share similar legal interests. It can be a powerful tool when used to block discovery of relevant and sometimes critical evidence. However, a determination of when the common interest doctrine can be invoked requires a highly fact-intensive analysis.

To that end, a recent letter opinion by Judge Laurie Silverstein of the U.S. Bankruptcy Court for the District of Delaware provides a helpful review of the standard for the assertion of the common interest privilege in the context of a plan discovery fight. See, In re Imerys Talc America, 2021 Bankr. LEXIS 428 (Bankr. D. Del. Feb. 23, 2021).

In Imerys, the debtors, the tort claimants committee (TCC), the future claimants representative (FCR), and the debtors' parent, Imerys SA (collectively, the plan proponents) filed a proposed joint plan of reorganization (the plan). In connection with the plan, certain potential opponents sought discovery from the debtors, the TCC and the FCR. In reviewing letters submitted by the parties and the attached categorical privilege logs, the court summarized the five main categories of documents that the plan proponents were asserting the common interest doctrine over: communications and documents regarding the trust distribution procedures; the bankruptcy generally with the debtors' parent, Imerys S.A.; settlements with third parties embodied in the plan; maximization of estate assets; and the plan generally.

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