Case Description
In the course of litigation related to the tobacco litigation and the Master Settlement Agreement, the Attorney General of South Carolina withheld documents on the grounds that they were protected by various privileges, including the attorney-client privilege, and that the privilege was not waived when the documents were shared with other states because of the common interest of the parties. The lower court denied the Attorney General’s privilege claims because NAAG and the other state Attorney General offices were not retained as counsel for South Carolina in this case. The Attorney General appealed. The South Carolina Supreme Court reversed the lower court, holding that while the relationship between the AG has and NAAG is not the traditional attorney-client relationship, these communications may be covered by the attorney-client privilege. Even though the AG has not “retained” the NAAG attorneys in this matter or with respect to the disputed documents, the AG is a paid member of NAAG, and NAAG staff attorneys are available to provide legal advice relating to the MSA and tobacco regulation and enforcement. The South Carolina Supreme Court also recognized, for the first time in South Carolina, the common interest doctrine which protects otherwise privileged documents from disclosure when they are shared with other parties with a common legal interest. In this case, the court held that the AG has a common interest with the other settling state attorneys general in matters relating to the MSA and tobacco regulation and litigation.
