To obtain the privilege of communicating with others, a party must generally show three things: that the communication ended in a common defence, that the communications were made to support the objectives of that common defence, and that the privilege was not nullified elsewhere (i.e. that the common defenders do not share communication beyond their small group). The key to fully understanding the scope of the common interest doctrine is to understand how the courts interpret the term “common interest.” To find, for example, a common interest in Oregon, the parties must only demonstrate that their interests are shared or similar; unlike the same.  Fortunately, the Panthers Court quashed the disputes in the court with the case law and found that such situations created only a rebuttable presumption in favour of disqualification which, as was the case there, could be contradicted by claiming that the new law firm had effective screening procedures in place to ensure that confidential information would not be disclosed to negative lawyers. But Panther has been published, and to date, no California court has ruled on this issue in the context of the common defense. Whether California courts will apply the automatic disqualification rule to this particular scenario remains open. The common privilege of the defence or the rule of common interest is an extension of solicitor-client privilege.  In accordance with the “common interest” or “common defence” doctrine, parties with a common interest may disclose inside information to real or potential disputes against a common adversary, without relinquishing their right to assert solicitor-client privilege.  Given that the common defence “can sometimes be applied outside the context of actual litigation, what the parties call a “common defence privilege” is more elegant than the “common interest” rule.  The concepts and predicates of a binding common interest agreement are essentially similar to those of the joint defence agreement. These include real common interests that are sufficient to justify a derogation from the rules for waiving solicitor-client privilege. A common defence agreement, which simply says that the parties are co-accused and want to exchange information, may not be enough to protect the privilege. Some courts are skeptical of efforts to hide behind a privilege that has been quashed and are reluctant to extend the privilege to third parties if there is no evidence that such an extension is warranted.
The court sided with the business counsel and concluded that there was no agreement and refused relief – Weissman`s incriminating statements were not privileged and could be used against him in court. The burden on the common defence is the same as the burden on the privilege of representation of the decision. The party arguing the common defence contract always bears the burden of proving its existence by defining each element of solicitor-client privilege.  Similarly, the party asserting the prerogative, both in common defence agreements and other means, bears the weight of proof of the applicability of the privilege.  Of course, not all cases in which clients and their lawyers want to exchange information with others and their lawyers are related to litigation. To deal with this eventuality, many courts have extended the principles of common defence privilege to the non-judicial context. A common problem with JDAs is the risk that a co-accused will decide to cooperate with the government. In 2017, according to the U.S. Prison Commission, about 97 percent of federal criminal proceedings resulted in an admission of guilt.  And about 11% of these cases also recorded a downward trend for substantial cooperation.  Particularly in the typical case of white-collar workers, substantial cooperation has often led to a time well below the minimum duration of the directive.  It is therefore not a question of whether a co-accused is cooperating with the government