On October 16, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2013 NY Slip Op. 51673(U), addressing the scope of the common interest privilege in the context of a corporate merger. Justice Bransten held that, contrary to rule applied by some federal courts, “New York law does not allow a privilege claim under the common-interest doctrine unless there is pending or reasonably anticipated litigation.”
Justice Bransten noted “that there is no litigation requirement when two parties consult with one attorney.” Thus, parties for whom it is important to create a common interest privilege outside of the litigation context should considering engaging joint counsel for that purpose.