A Crowell & Moring LLP attorney must finish being deposed in a Securities and Exchange Commission suit against a former client, the U.S. District Court for the Southern District of New York said Dec. 13.

The client failed to establish a common interest between himself and his employer that would make the sought after communications privileged, the opinion by Judge P. Kevin Castel said.

Paul Weiss law firm represented Apollo Management LP during an SEC investigation into Apollo employee Mohammed Rashid. Glen McGorty of Crowell represented Rashid, but doesn’t now.

During a pretrial deposition, Rashid objected to McGorty answering questions about communications between McGorty and Paul Weiss, asserting they were protected by Rashid’s common interest with Apollo.

The common interest privilege protects confidential communications passing from one party to the attorney for another party where the parties have undertaken a joint defense, the court said. But there must be an agreement to pursue a joint legal strategy and the party invoking the privilege must demonstrate a meeting of the minds, it said.

Neither McGorty nor his Paul Weiss counterpart remembered agreeing to a common interest strategy, the court said. Paul Weiss expressly rejected a joint defense at one point, it said.

Also, it was irrelevant that Apollo paid Crowell’s fees, and Crowell’s retention letter didn’t show a joint legal strategy, the court said.

SEC attorneys represented the government. Greenberg Traurig PA represented Rashid.

The case is SEC v. Rashid, 2018 BL 462577, S.D.N.Y., No. 17-cv-8223 (PKC), 12/13/18.