Written Joint Defense Agreement

From a purely legal point of view, the privilege of common defence is an inappropriate term because it is not in fact an affirmative privilege; rather, it is an exception to the waiver rule. In general, the disclosure of inside and confidential information to third parties constitutes a waiver of privilege. However, persons protected by a joint defense agreement may avoid a waiver and maintain privilege regardless of the disclosure of confidential information to third parties. The Shelby case included a written joint defence agreement, but the Court of Appeal did not contain any language that required a written agreement. The Court`s decision provided that there were two essential aspects of the agreement: a common interest and an agreement that the information would be treated confidentially. There will be cases where a co-defendant attempts to monopolize the direction of the legal strategy as part of a JDA just for his or her benefit. The cooperating defense attorney should be tired of these situations, as a court may determine that there is no JDA in such circumstances. As a starting point, many courts distinguish between common defence privilege and common privilege, noting that the former is narrow and results from factual disputes, while common interest privilege is broader and does not require an ongoing dispute. Many other dishes use the terms almost interchangeably, with no significant distinction between the two. There is no rule that obliges parties to a JDA to recall their agreement in writing; In fact, many JDAs are oral. However, participants who insist on verbal agreements should have assessed the associated risk. Namely, there is no risk that the court will rule on a JDA. In litigation, co-defendants often have a common interest in rejecting the plaintiff`s claims.

Especially in situations where co-defendants do not try to blame each other, the courts have recognized that defendants can conduct a common defense and share trust and secrets (as well as expenses). In this context, although communications between defendants are not protected in subsequent disputes between them, communications would be protected against discovery by plaintiffs. The purpose of this email is to recall our discussions yesterday on the common interests of our customers in FIFA-related matters. We will work together in accordance with an agreement of common interest. I understand that it will have similar terms to the last one we had, and we can know if we should have it in writing, specific details, etc. when you land. It has been effective since yesterday. [12] A joint defense agreement that simply states that the parties are co-defendants and want to share information may not be sufficient to protect the privilege. Some courts are skeptical of efforts to hide behind a waived privilege and are reluctant to extend the privilege to third parties if there is no evidence that such an extension is supported. Other courts have broadened a common interest, but the risk remains that the courts may find that the interests of the parties are not sufficiently “common” or “common” to recognize a joint defence agreement […].