Last Man Standing: Kansas's Failure to Recognize the Common Interest Doctrine

Corporation B is currently on the verge of going under. Corporation A is considering acquiring Corporation B, but before Corporation A agrees, it wants to know if Corporation B has any ongoing legal issues. Corporation B is currently engaged in litigation unrelated to the acquisition. Can Corporation B share litigation-related material with Corporation A? The outcome depends largely on whether the jurisdiction recognizes the common interest doctrine. In Kansas, such a communication would put Corporation B in a precarious situation. If Corporation B shares litigation-related materials with Corporation A, it likely waives its attorney-client privilege, and thus the litigation materials would become discoverable by the opposing party. However, if Corporation B does not share this information with Corporation A, it will likely lose the deal. The common interest doctrine’s jurisdictional inconsistency makes this hypothetical a realistic possibility. Generally, a client waives attorney-client privilege if they communicate previously privileged information to a third party. However, approximately ninety percent of jurisdictions recognize an exception to this rule known as the common interest doctrine. The common interest doctrine allows parties