Co-defendants, insurers, indemnitors and the sharing that does not waive.
Esshaki Legal Media TeamCurrent as of August 2025
Multi-party litigation raises recurring questions about who may see privileged
material without destroying the privilege.
Co-parties. Sharing with an aligned co-party is protected by the common
interest doctrine where a genuine common legal interest exists, ideally under a
written agreement.
Insurers. Communications between an insured and its liability insurer about
the defense are protected in most jurisdictions, either as privileged where the
insurer is treated as within the attorney-client relationship, or as work
product. Communications about coverage are a different matter and are frequently
discoverable in a coverage dispute.
Indemnitors. A party with an indemnity obligation shares a common legal
interest with its indemnitee in defending the underlying claim, which generally
supports protected sharing.
Corporate families. Parent and subsidiary generally share privilege where
the communication relates to their common interest, though the analysis
sharpens if their interests later diverge.
Joint clients. Where one lawyer represents two clients in a matter,
communications are privileged as against outsiders but not as between the
clients if they later fall out. Both should be told this at the outset in
writing.
Former employees. Communications with them about matters within their prior
duties are generally protected, though authority varies.