Lawyers representing multiple defendants in a single lawsuit regularly share information such as witness-interview notes, deposition summaries, client-interview notes, expert-interview notes, legal memoranda, and other confidential information relevant to all defendants. Defendants are not alone in this information-sharing–plaintiffs’ lawyers in multi-plaintiff cases often share documents in which they have a common interest. Several privilege-related questions arise when parties share confidential information. Does sharing confidential information waive any applicable evidentiary privilege or the work-product doctrine? Is a joint defense agreement necessary to preserve privilege assertions? What provisions should a joint defense agreement contain? Are there any disadvantages to entering a joint defense agreement?
In their excellent article, In Unity There is Strength: The Advantages (and Disadvantages) of Joint Defense Groups, 80 Def. Counsel J. 29 (Jan. 2013), published in IADC’s reputable Defense Counsel Journal, Chicago trial lawyers Brad Nahrstadt and Brandon Rogers explore all aspects of joint defense agreements, including the scope of the joint defense privilege. The article discusses the advantages and drawbacks of forming information-sharing groups and what pre-litigation events trigger a joint defense situation necessary to secure the privilege. The authors identify a very helpful list of 33 provisions that parties should consider including in their joint defense agreement and, importantly, discuss ethical conflict-of-interest issues that may arise.
The authors remind us that the joint defense privilege, also called the common interest privilege, is not actually an independent privilege, but rather a doctrine of non-waiver. The joint defense privilege precludes waiver of other evidentiary privileges that protect information shared with the defense group as well as communications among lawyers for parties within the group. You may access the article at this link, and I recommend it as a “must read” for lawyers drafting joint defense agreements and otherwise wanting to share privileged information without waiving the privilege.
My thanks to authors Brad Nahrstadt and Brandon Rogers and the International Association of Defense Counsel (IADC) for permission to link this article in this post.