Large construction projects often involve layered contractual relationships, pass‑through claims, and competing commercial interests. When disputes arise, the default approach is frequently adversarial — prime contractors and subcontractors pursue parallel or competing claims, often against each other as much as against the owner. While familiar, this “fight it out” model tends to increase costs, weaken recovery, and prolong resolution.
An alternative approach is gaining traction — structured collaboration through Common Interest Agreements (CIAs). When used correctly, CIAs allow aligned parties to coordinate strategy, share information, and preserve privilege — unlocking efficiencies that traditional claim models often leave on the table.
The Limits of the Traditional Adversarial Model
In many disputes, contractors and subcontractors pursue claims independently, even when underlying interests overlap. This approach could introduce several risks, including:
- Diluted recovery due to inconsistent legal theories, pricing methodologies, or scheduling analyses.
- Lost leverage with owners, who may exploit misalignment between project participants.
- Increased internal disputes between project teams, counsel, and experts.
- Escalating legal and expert costs as parties fight on multiple fronts.
Rather than strengthening a claim, fragmentation often undermines it — especially on complex infrastructure projects where causation, responsibility, and damages are deeply interconnected.
Collaboration as a Strategic Advantage
Collaboration does not mean abandoning contractual rights or independent advocacy. Instead, it means aligning strategy where interests overlap. When structured properly, collaboration allows parties to:
- Develop joint legal strategies while preserving independent positions.
- Focus on shared strengths in entitlement and causation.
- Pool resources and reduce duplicative expert work.
- Empower the most capable parties — whether legal, technical, or analytical — to lead key aspects of the claim.
The challenge is doing this without jeopardizing privilege or work‑product protections. That is where CIAs come into play.
What Is a CIA?
A CIA is a legal arrangement between parties who share a common legal interest, allowing them to exchange information and coordinate strategy without waiving attorney‑client privilege or work‑product protections.
In construction disputes, a common legal interest often arises in scenarios like pass‑through claims, joint prosecution against an owner, or shared defenses to overlapping allegations. A CIA creates a protected environment in which counsel, consultants, and experts can collaborate while maintaining confidentiality.
Drafting CIAs: Key Considerations and Best Practices
While not universally required to be in writing, a well‑drafted CIA is critical to ensuring enforceability and clarity. Effective agreements typically address:
- Identification of the parties, clearly defining who is covered by the agreement.
- Definition of the shared legal interest, tied to a specific legal matter rather than general project administration.
- Scope of the agreement, excluding routine project communications from the protected “bubble.”
- Cooperation expectations, including the role of consultants and experts.
- Confidentiality protections, including handling of third‑party requests and inadvertent disclosures.
- Pass‑through or joint-prosecution processes, where applicable.
- Withdrawal provisions, clarifying how protections survive if parties later become adverse.
One best practice is clearly labeling common‑interest communications and analyses, which can be invaluable if privilege is later challenged.
The Consultant’s Role in a Collaborative Framework
Consultants play a critical role in CIA‑based collaboration, particularly in complex schedule and damages analyses. Early coordination between experts can prevent misalignment and reduce rework.
At the outset of a CIA, experienced teams often focus on baseline alignment: What analyses have already been performed? What records have been reviewed? Where do information gaps exist. In some cases, experts enter the process “cold” — bringing a fresh, neutral perspective. In others, they arrive with deep project familiarity and preliminary opinions already formed. Both approaches can be effective — so long as roles, expectations, and analytical boundaries are clearly defined.
Practical Takeaways
Across multiple large transit and infrastructure projects, collaborative CIAs have enabled teams to address issues that would have been far more difficult under a fragmented approach. Common themes include:
- Resource‑driven delays, when access or support constrains progress.
- Forensic schedule analyses that require integration of contractor and subcontractor data sets.
- Development of clear, demonstrative analyses translating complex operational impacts into measurable delay and cost outcomes.
In one scenario, collaborative analysis revealed how constrained access compounded month‑over‑month, creating a cumulative delay effect that was not apparent when parties analyzed their scopes in isolation. By jointly developing the analytical framework, the team was able to present a cohesive narrative grounded in shared facts and methodologies.
Are CIAs Recognized Nationwide?
While nuances exist by jurisdiction, the common interest doctrine is generally recognized under federal law and in many states. Courts typically look for three core elements:
- The communication would otherwise be privileged.
- Disclosure was necessary to advance a joint legal strategy.
- The parties had a reasonable expectation of confidentiality.
Meeting these criteria and documenting them clearly in the agreement is essential to maintaining protection.
Looking Ahead: From Adversaries to Aligned Advocates
CIAs are not “forever” arrangements, nor do they eliminate the possibility of later disputes. But when used thoughtfully, they offer a powerful tool for managing risk, controlling costs, and improving outcomes in complex construction claims.
For contractors and subcontractors facing high‑stakes disputes, the key question is no longer whether collaboration is possible — but whether failing to collaborate is a risk they can afford.
Contributors
- Megan Cantelbary, Partner | Moye, O’Brien & Masterson, LLP
- Luke Eaton, Member | Cozen O’Connor
- Leslie King, Member | Cozen O’Connor
- Mark Masterson, Managing Partner | Moye, O’Brien & Masterson, LLP
- Brian Rice, Vice President & Deputy General Counsel | RailWorks Corporation
© Copyright 2026. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
