The Court of Appeals adopted an expansion of the attorney-client privilege in Estate of Nash v City of Grand Haven (2017). Attorney-client communications relating to legal advice are privileged, of course. But what if another party communicates with both a party and that party’s attorney in an attempt to develop a common legal strategy?

Ordinarily, a non-party’s involvement in otherwise privileged communications destroys the privilege. Under Nash, however, those communications are subject to the attorney-client privilege. Adopting the federal common-interest doctrine, the Nash court held that this doctrine applies “where the parties undertake a joint effort with respect to a common legal interest, and … is limited strictly to those communications made to further an ongoing enterprise.” The “communications need not be made in anticipation of litigation” to fall within this rule.

Nash was a FOIA case in which the plaintiff sought records relating to a sledding accident on city property. The Court applied the common-interest privilege to communications between the city or its attorneys and defendants in the underlying tort action.

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