If an agreement between a party and a party cannot be reached, the disputes should be submitted before documents are made available to the party. This would create a basis for a common legal interest, which could then be demonstrated and used to extend the privilege of common interest. To Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 (2016), the New York Court of Appeals has expressly limited the application of the doctrine of common interest to “co-accused, co-prosecutors or persons who reasonably expect them to become civil parties…. In this regard, the Court of Appeal clarified that the policy underlying the doctrine was to allow two or more parties to coordinate a common claim or defence, without fear that such efforts would later become an object of disclosure. Communication between an advisor (or other third party) and a client may be protected by solicitor-client privilege if the advisor is an “intermediate gap” between a lawyer and a client. Garrett v. Metropolitan Life Ins. Co., 1996 U.S. Dist. LEXIS 8054 (S.D.N.Y.
June 11, 1996) (Bernikow, Mag. J.), adopted, 1996 U.S. Dist. LEXIS 14468 (S.D.N.Y. Oct 2, 2, 1996). However, it is essential that communication between the advisor and the client be made for the explicit purpose of obtaining the assistance of a lawyer. In re G-I Holdings, Inc. 218 F.R.D. 428, 434 (D.N.J.
2003). In addition, the consultant must be considered the “functional equivalent” of an employee of the client company. Viacom, Inc. v. Sumitomo Corp. (In re Copper Mkt Antitrust Litig.), 200 F.R.D. 213, 218-20 (S.D.N.Y. 2001). The definition of an advisor as a “functional equivalent” of a company employee depends on whether the advisor is acting for the company and has the information that lawyers need to provide legal advice.
In re Grand Jury Subpoenas, 995 F. Supp. 332, 340 (E.D.N.Y. 1998). And the purpose of consulting-client communication must first and foremost be to seek legal advice – not for commercial purposes. In re Ford Motor Co., 110 F.3d 954, 965 (3d Cir. 1997); United States: Rockwell, Int`l, 897 F.2d 1255, 1264 (3d Cir. 1990); Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J.
1990). Courts have generally been cautious in applying solicitor-client privileges to communication between clients and external consultants.