When considering the validity of a joint defence agreement, courts generally focus on whether the interests of the parties are genuinely aligned. For example, in a dispute over the World Trade Center under 9/11, the Southern District Court of New York refused to recognize the common interest privilege claimed by the leaseholders on the WTC and the employees of the insurance broker who had received coverage for the WTC. The privilege of common interest is also an extension of the doctrine of the product of labor. See Power Mosfet Techs. v. Siemens AG, 206 F.R.D. 422, 424 (E.D. Tex. 2000). When a lawyer discloses inside information to third parties, the protection of professional products and that of professional products are generally abandoned. See United States v.
Pipkins, 528 F.2d 559, 563 (5. Cir. 1976). But the privilege of the common interest expands the privileges to potentially protect those who are otherwise exempt. Siemens AG, 206 F.R.D. to 424. The party claiming the privilege has the burden of proving that the privilege exists. Id. at *7. Andrews J. noted that the plaintiffs had not discharged their burden of proof to establish a common legal interest for two reasons: (1) the documents were provided prior to an agreement between Hamilton Capital and the plaintiff, and (2) the notices were exchanged prior to the filing of a dispute. Id.
at *9. The defining feature that was missing from the plaintiff`s argument was therefore that it could not prove that the plaintiff and Hamilton Capital were allies in a joint case at the time of disclosure. Joint advocacy agreements can be effective tools to promote client interests and reduce costs. The key is to do them well so that they do not themselves become the basis of a legal dispute. As a starting point, many courts distinguish between common defence and common interest privilege, concluding that the former is narrow and results from actual litigation, while common interest privilege is broader and does not require ongoing litigation. Many other dishes use the terms almost interchangeably, with no significant difference between the two. CONSIDERING that the parties recognise that they have a common interest in ensuring that their legal rights to discuss, negotiate and execute the transaction are fully protected in the event of proceedings; and there are no warranties, conditions or representations (including those that may be implied by law) and there are no agreements in connection with such subject matter, except as expressly provided for or referred to in this Agreement, the Non-Disclosure Agreement or the Common Interest Agreement. 1. Common Interest Privilege Exception to Strict Confidentiality The Common Interest Privilege may, in certain circumstances, extend solicitor-client privilege to communications between the parties and non-parties. It protects communications shared within an “appropriate community of interest” at the time of communication.
In re Teleglobe Commc`ns Corp., 493 F.3d 345, 364 (3d Cir. 2007). To be considered an “appropriate community of interests”, the interests between the parties must be identical (similarities are not enough) and legal (not just of a commercial nature). Leader Techs., Inc.c. Facebook, Inc., 719 F. Supp. 2d 373, 376 (D. Del. 2010). In addition, disclosures must have been made for the purpose of “obtaining, promoting or providing legal representation.” See In re Regents of the Univ.
of Cal, 101 F.3d, p. 1389 (cited in Grand Jury Subpoena Duces Tecum, 406 F. Supp. 381, 386 (P.D.N.Y. 1975)); see also In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 126 (3d Cir. 1986). 7.
The disclosure of common defence information under this Agreement shall not prevent either Party from bringing a legal or equitable action against another Party in any proceeding. In the future, where proceedings arise between the parties (including proceedings involving other parties not party to this Joint Defence Agreement), neither Party to such proceedings may use against another Party joint defence information received from that Party or jointly prepared by the Parties. In addition, no oral or written statement made by a Party to another Party and covered by this Agreement shall be considered an admission to this proceeding. The parties further agree to issue, in any subsequent proceedings between themselves or each other, an agreed protection order protecting all common defence information against disclosure to third parties. Jurisdictions differ greatly in their treatment of the privileges of the common interest. In a jurisdiction that recognizes the privilege of the common interest, the parties should be aware of common pitfalls, in particular the lack of establishment of a common legal interest. In order for solicitor-client privilege to extend to non-parties, the parties must enter into a written agreement at the time of disclosure in order to have a common legal interest in the information exchanged. Although a written agreement is not required, it can be difficult to prove that an oral agreement was reached and was binding. In addition, the agreement of common interest should clearly define the common legal interest.
If a party to a joint defense agreement decides to cooperate with the government, the ability to disclose confidential information also threatens the rights of other defendants in the Sixth Amendment. (Quotes omitted). Federal courts have an independent interest in ensuring that criminal proceedings are conducted in accordance with the ethical standards of the profession and that court proceedings appear fair to all who comply with them. Courts also have an independent interest in protecting a fair verdict from trial tactics that may be aimed at creating problems on appeal. Given the high risk of wrongdoing, courts have full authority to investigate joint defence agreements before problems arise. [7] However, even with such guidelines, it may still be difficult to determine what is the respective interest of each party and, more importantly, whether there is a common interest. To ensure that there is no error, cooperating parties who are in a dispute or anticipating a dispute often include JDAs. However, with respect to the common interest privilege, the Eastern District of Texas was of the view that the privilege should be interpreted restrictively. Citing a Delaware case, the court argued that the doctrine of common interest protects legal advice only if the parties share a joint legal entity and legal advice related to that joint legal entity. Id. at *19 (citing Rembrandt Techs., L.P.c. Harris Corp., No.
07C-09-059, 2009 Del. Super. LEXIS 46, 2009 WL 402332 (Del. Super., 12 February 2009). If the parties negotiated their rights and relationships with each other, they would be against each other and could not have a common legal entity at that time. Id.; Rembrandt Techs., L.P. v. Harris Corp., 2009 Del. Super. LEXIS 46, [WL] to *7, n.73. Thus, the District of Delaware and the Eastern District of Texas have held that if a party negotiates an agreement with a financier in the dispute – before an agreement is reached – the parties have no common legal interest and therefore cannot invoke the privilege of the common legal interest.
(a) any prerogative of the Party that transmits or jointly develops the information whose prerogatives cannot be exercised without the prior written consent of that Party, without unduly refusing consent at the request of the other Party; and (b) the terms of this Agreement. Any accidental or intentional disclosure by either party of information exchanged under this Agreement shall not constitute a waiver of any privilege of another party. 12. This Agreement shall apply to all exchanges of common defence information between the Parties prior to their implementation of this Agreement and shall be intended as a written embodiment of the Parties` previous oral common defence agreement. This Agreement is intended to reaffirm and supplement the Joint Defence and Common Interest Agreement concluded by the Parties and their counsel of 16 August 2004, and applies to the exchange of joint defence information under this previous Agreement. THEREFORE, the Parties recall in writing this Agreement for their common defence and common interest, as follows: the burden on the common defence is the same as the burden of proof of solicitor-client privilege. The party invokes the joint defence agreement always bears the burden of proof of its existence by determining each element of solicitor-client privilege. [9] Similarly, the burden of proof of the applicability of the privilege lies with the party claiming a privilege under common defence agreements and elsewhere. [3] Other courts have broadened the interpretation of a common interest, but the risk remains that the courts will find that the interests of the parties are not sufficiently “common” or “common” to recognize a common defence agreement. The best practice is to articulate common legal interests, including positions, defences and potential liabilities.
A common interest agreement is an agreement entered into by lawyers and their clients to allow the exchange of information and strategies without violating confidentiality requirements. This document allows lawyers to coordinate and collaborate when representing clients with similar legal interests. .