Aug 42014

New Jersey Court Broadly Construes Common Interest Rule

Kristin Graham Koehler and Nicole C. Frazer
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Posted by Kristin Graham Koehler and Nicole C. Frazer

The New Jersey Supreme Court recently held that the common interest rule—which protects attorney-client communications and attorney work product shared among attorneys representing different clients—can trump both statutory and common law rights to access government records. Martin E. O’Boyle v. Borough of Longport, No. A-16-12, 070999 (N.J. July 21, 2014). The Court’s broad rule applies in both civil and criminal cases and lends clarity to New Jersey law on the common interest rule in situations involving requests to access government records.

Plaintiff O’Boyle, a resident of the Borough of Longport, filed two separate, but related, complaints, one against zoning board members and another against local residents. The zoning board members were represented by municipal counsel and the residents were represented by private counsel. After the two defense attorneys shared and collaborated on documents related to the cases, O’Boyle filed right of access requests under both state law and common law. The New Jersey Supreme Court held that the communications between the two attorneys were protected by the common interest rule and that the rule was not overcome in this instance by either statutory or common law rights to access government records.

The Court unanimously adopted a broad formulation of the common interest rule in the government records context. Under this rule, parties need not share identical interests in order to avail themselves of the common interest rule. The rule can be invoked even if litigation has only been contemplated and has not yet commenced. Communications need not be made between counsel in order to be protected by the rule; information shared between counsel for one party and a representative of another party is also protected. And, the Court stated that the rule could apply to multiple—and even many—commonly interested clients.

The Court did note that other courts outside of New Jersey have construed the common interest rule more narrowly; for example, some jurisdictions require that the interests of the parties be completely congruent in order for a common interest to exist. However, the New Jersey Supreme Court rejected such approaches because it believed that narrow formulations result in less certainty concerning the application of the common interest rule. The Court also reasoned that its broader formulation best upholds the purpose of the common interest rule, which is to permit the free flow of information among counsel who represent clients with a commonality of purpose. Per the Court, this free flow of information ultimately gives parties the ability to make sounder litigation decisions and take more informed positions.

Still, the New Jersey Supreme Court recognized that there are limits on the common interest rule in the area of government records access. Clients and attorneys united by common interest must continue to take measures to prevent disclosure to an adversary in order to preserve privilege. And, in New Jersey, the common interest rule can, in some cases, be overcome by the common law right to access government documents. In order to have a right to access in New Jersey, a party must show that the documents in question are public records, that the party seeking disclosure has an interest in the public records, and—if the records are privileged—that the party has particularized need for disclosure. Plaintiff O’Boyle could not show particularized need and thus could not overcome privilege; however, the Court indicated that had he shown particularized need, disclosure would have been required.

The New Jersey Supreme Court’s broad construction of the common interest doctrine certainly will be helpful to defendants in that jurisdiction – and, perhaps, others.

Kristin Graham Koehler

Washington, D.C.

kkoehler@sidley.com

Nicole C. Frazer

NicoleC.Frazer@sidley.com

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