The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law. This privilege allows clients to communicate freely with legal counsel without worry of disclosure through discovery or at trial. Moreover, the joint defense privilege has been recognized as an extension of the attorney- client privilege which gives attorneys and clients alike additional room to share privileged information to third parties without creating a waiver. However, since its recognition, use of the joint defense privilege has created questions in the legal community regarding the discoverability of such information for use against a party to the joint defense in litigation.
In general, the joint defense privilege “extends the attorney-client privilege to any third party made privy to privileged communications if that party ‘has a common legal interest with respect to the subject matter of the communication.’’’ Aiken v. Texas Farm Bureau Mutual Ins. Co., 151 F.R.D. 621, 624 (E.D. Tex. 1993) (citing In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992)). Moreover, the joint defense privilege “encompasses shared communications between various co-defendants, actual or potential, and their attorneys, prompted by threatened or actual, civil or criminal proceedings, ‘to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings’ … ‘or whenever the communication was made in order to facilitate the rendition of legal services to each of the clients involved in the conference.’” Id. at 624.