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I. INTRODUCTION
It seems since antiquity every lawyer has been force-fed the notion that litigants have a right to uncover what some refer to as "every man's evidence."1 Because the law favors the unearthing of otherwise competent evidence, it is perhaps not surprising that an oft-quoted legal maxim holds that privileges are to be construed narrowly.2 In light of certain developments in the body of law concerned with issues of "privilege," perhaps the time has come to alter (or at least revise) these long-standing legal principles.
Although the attorney-client privilege and work-product doctrine certainly are well recognized, a number of other "odd" offshoots have begun to take root of late.3 I refer to as "odd" that which is sometimes called a privilege, or a doctrine, or an exception, or an extension (of some or all of the aforesaid) depending on the jurisdiction and the setting. Indeed, at present count there are some fifteen recognized rules, doctrines, privileges, or exceptions purportedly safeguarding communications and materials in informally aggregated matters including the following: the jointdefense doctrine,5 joint-defense privilege,6 joint-prosecutorial privilege,7 allied-lawyer privilege,8 common-interest doctrine,9 common-interest exception,10 common-interest privilege,11 common-interest rule,12 common-defense doctrine,13 pooled-information privilege,14 common-purpose theory,15 community-of-interest doctrine,'6 joint-client privilege,17 joint-client doctrine,18 common-interest exception to waiver,19 and shared-confidentiality privilege.20 The use of these protean terms is, at best, confusing and has done little other than needlessly add overcapacious analogues to our present legal lexicon. Suffice it to say, the previous terms are unnecessary if only because they generally refer to the same thing: namely, efforts to protect communications and materials between "aligned" parties.21
In adding to the list, I will employ a new neologism, the "allied-party doctrine," to refer collectively to the aforementioned terms in this Article's discussion within the context of qui tarn litigation22-and to argue against the recognition of a separate allied-party doctrine or privilege in those qui tam cases where the government declines to intervene. Why confine the argument against the allied-party doctrine to False Claims Act litigation, you might ask?
The reason becomes apparent when one reviews the case law and scholarship in the area. Case law construing the allied-party doctrine in qui tam litigation uniquely demonstrates why the judiciary lacks a consistent and coherent approach to the many issues swirling about...