• Privilege Standing Committee Update: Practice Tip
  • April 27, 2007
  • Law Firm: Wilmer Cutler Pickering Hale and Dorr LLP - Washington Office
  • While courts often enforce oral agreements, in certain situations parties with similar interests may decide to have written joint defense agreements prior to sharing any privileged communications. Written joint defense agreements often include at least the following points:

    (1) Identify the common legal problem;

    (2) Note that the agreement covers only communications/documents exchanged in furtherance of addressing that common legal problem;

    (3) Agree that one party cannot disclose documents/communications received from another party without that party’s prior written permission;

    (4) Agree that any party may still exercise the option to waive privilege in its own documents, regardless of whether it shared those documents with other joint defense parties;

    (5) Agree that one party cannot use confidential information obtained from another partyin connection with the joint defense for any other purpose;

    (6) Require one party to provide notice to the other parties if it intends to leave the joint defense group; and

    (7) Agree that none of the parties’ lawyers will be considered the lawyer for any other party in the joint defense group.