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JOINT DEFENSE AGREEMENT

            This Joint Defense (the “Agreement”) is made and entered into as of {DATE} by and among the undersigned counsel, for themselves and on behalf of their respective clients {LIST PARTIES} (each individually a “Party,” and collectively, “Parties”).

RECITALS

            WHEREAS, the Parties have been named as defendants in a lawsuit filed by {PLAINTIFF NAME} entitled {CAPTION}, which was initially filed on {DATE}, in the {COURT NAME} (the “Lawsuit”).

            WHEREAS, for purposes of this Agreement, the term “Counsel” means and includes any attorney representing any Party, including in-house attorneys, any and all paralegals, law clerks, and any outside vendors of the Parties’ respective outside counsel acting at the direction of outside counsel, and any other persons expressly agreed to in writing by the Parties.  The term “Outside Counsel” means and includes any attorney representing any Party at an outside law firm, as well as paralegals and law clerks working for such attorneys.  The term “Joint Defense Group” means and includes the Parties and Counsel.

            WHEREAS, the Parties possess common legal interests in the analysis and defense of certain assertions and claims relating to the Lawsuit, including any and all potential affirmative defenses and counterclaims.  The Parties wish to ensure that their attorneys are free to share and exchange information that may be useful in the representation of each Party, without waiving the confidentiality of communications and documents protected by the attorney-client privilege, the attorney-work product doctrine, or any other applicable privilege.  The undersigned attorneys consider disclosure of matters of common concern to the Parties to be conducive to the effective representation of the Parties.  Accordingly, the Parties are in agreement that all disclosures between and among the Parties and their counsel for purposes of a common defense shall be and are confidential, covered by the attorney-client privilege, the work-product doctrine, and any other applicable privileges, and that the Parties intend to preserve and extend the applicability of any applicable privilege or immunity to all information shared or exchanged pursuant to this Joint Defense Agreement in preparation for, during the defense of, and after the resolution of the Lawsuit.  Notwithstanding the foregoing, nothing in this Joint Defense Agreement obligates the Parties to pursue joint defenses during the course of the Lawsuit.

NOW, THEREFORE, the Parties and the Parties’ Counsel agree as follows:

  1. Sharing Joint Defense Materials.
    1. Members of the Joint Defense Group are entitled to communicate and share information with each other as they see fit, both orally and in writing, in connection with the Lawsuit. To that end, the Joint Defense Group (i) may share with each other information protected by the attorney‑client privilege and the attorney work-product doctrine in order to assert common or joint defenses to the claims that are or may be asserted in the Lawsuit, and (ii) may exchange with each other privileged and work-product information, whether oral, written, or electronic in form, including without limitation factual and/or legal analyses, mental impressions, legal memoranda, legal research, reports of witness interviews, expert reports, draft briefs and pleadings, and other information (once exchanged, the “Joint Defense Materials”).  The Joint Defense Materials include,  but are not limited to, the following: (a) any information or documents relating or referring to the Lawsuit provided by or on behalf of any Party, (b) all copies, memoranda, summaries, analyses, and notes prepared by any Party or their respective counsel, experts or consultants relating to the Lawsuit; (c) any portion, communication, or transmission of any information or documents described in this paragraph (d) information regarding the identification and description of documents relating to the Lawsuit; (e) information regarding the transactions and events that are the subject of the Lawsuit; (f) information and documents obtained from interviews with, and investigations of, clients, whether joint or individual; (g) information and documents obtained from interviews with, and investigations of, witnesses and potential witnesses; (h) information and documents obtained from interviews with experts or consultants; (i) drafts of pleadings and other papers; and (j) research, analyses, strategies, theories, mental impressions and other attorney work product.
    2. To the extent the Parties and/or Counsel already have communicated and shared with each other confidential attorney-client communications and/or attorney work product or other information concerning this Lawsuit that come within the definition of Joint Defense Materials under this Agreement, all such communications and information previously shared are subject to the terms of this Agreement.
  2. Preservation of All Privileges.
    1. Except as set forth below, unless expressly stated in writing to the contrary, any communications among the Joint Defense Group concerning Joint Defense Materials are confidential and remain protected from disclosure to any third party by the attorney-client privilege, work product protection and the joint defense doctrine, and any other applicable privileges, to the maximum extent permitted by law. Any inadvertent or purposeful disclosure of information exchanged pursuant to this Agreement, including by one member of the Joint Defense Group to another, shall not constitute a waiver of any privilege or protection.
    2. No member of the Joint Defense Group may waive, intentionally or otherwise, any privilege possessed by any other member of the Joint Defense Group. In the event any Party or Counsel purports to waive any privilege of another member of the Joint Defense Group, intentionally or otherwise, that waiver shall not be considered a waiver of the privilege by the Party or Counsel possessing the privilege and cannot be construed against the Party or Counsel possessing the privilege.
  3. No Disclosure to Third Parties. Each member of the Joint Defense Group shall take reasonable steps to preserve the confidentiality of the Joint Defense Materials.  Except as set forth in this Agreement, the Joint Defense Group members shall not disclose Joint Defense Materials to third parties without the consent of the member of the Joint Defense Group who provided the Joint Defense Materials pursuant to this Agreement.  The Joint Defense Group members are not third parties, and disclosure to any other member of the Joint Defense Group conforms to this Agreement and is not a waiver of the attorney-client privilege, work product protection or the joint defense privilege.  All persons permitted access to any Joint Defense Information shall be informed in writing that such information is confidential and privileged and subject to the terms of this Agreement, and shall agree to comply with the terms of this Agreement with respect to the confidentiality of such information by signing Exhibit A.
  4. No Agency or Fiduciary Relationship. The existence of this Agreement or of a joint defense effort in connection with the Lawsuit shall not be deemed to create any new attorney‑client relationship between any attorney and any Party, nor any new fiduciary or agency relationships between any attorney and any Party. Any attorney-client or fiduciary relationships shall be determined without reference to this Agreement.  This Agreement shall not be used offensively or defensively in any Lawsuit between the signatories to this Agreement involving any issues relating to or deriving from the Lawsuit.  Nothing in this Agreement is intended to affect, waive or otherwise modify any agreement to defend or indemnify, or any reservation of rights in connection with same, between any Parties to this Agreement.
  5. No Conflict of Interest. No Party to this Agreement will claim that counsel for any other Party is now or will be in the future disqualified from representing any Party in any proceeding by reason of this Agreement or the joint defense effort.  Nothing in this Agreement shall create a conflict of interest requiring disqualification of counsel, and the Parties to this Agreement hereby knowingly and willingly waive any such conflict of interest.  Each attorney represents that he or she has informed his or her client of the general nature of the conflicts that might arise, and that his or her client has knowingly and intelligently waived any conflict of interest that may arise on account of the Agreement, including, specifically from an attorney member of this Agreement (other than his or her own attorney) examining him or her at trial or any other proceeding relating to the Lawsuit.  Therefore, the attorneys, for themselves and on behalf of their clients, hereby waive any right to seek the disqualification of counsel for the other Party based on a communication of joint defense privileged information made in accordance with this Agreement.
  6. Any Party may withdraw from this Agreement upon prior written notice to all other members of the Joint Defense Group, in which case this Agreement shall no longer apply to the withdrawing Party prospectively, but shall continue to protect all Joint Defense Materials communicated or exchanged prior to such withdrawal.  Notwithstanding the termination of or withdrawal from this Agreement, the confidentiality obligations set forth herein shall survive as binding obligations of the Joint Defense Group and shall remain in full force and effect without regard to whether the Lawsuit is terminated by final judgment, settlement or otherwise.  In the event any Party withdraws from the Agreement, the remaining members of the Joint Defense Group are free to use the Joint Defense Materials and make derivative use of any privileged information, including information that they obtained from the withdrawing member, in the Lawsuit pursuant to the terms of this Agreement.
  7. Compliance With Discovery Obligations. Nothing in this Agreement shall be interpreted as requiring or suggesting that any Party has agreed to withhold any materials properly discoverable under applicable law.  This Agreement is not intended to and should not be construed to evidence any agreement to prevent disclosure of all properly discoverable information, documents and materials.
  8. Notice of Discovery Demands or Disclosure. The Joint Defense Group, and each of them, shall claim, assert and defend the joint defense privilege and any other applicable privilege for the Joint Defense Materials.  Should any member of the Joint Defense Group become aware of a request for, or actual, disclosure to a third party of any materials or information protected by this Agreement, whether pursuant to subpoena or otherwise, the member will immediately notify the Joint Defense Group of such request or disclosure,  and take all reasonable steps necessary or appropriate to permit the assertion of applicable rights with respect to such Joint Defense Information.  In the event of any efforts by a third party to compel disclosure of information obtained solely as a result of this Agreement, the target of the subpoena or other form of compulsory process shall promptly notify the Joint Defense Group so as to afford the Joint Defense Group the opportunity to seek protection from the disclosure of such information.
  9. No Waiver of Defenses. By entering into this Agreement, none of the members is waiving any claim or defense in connection with the Lawsuit or otherwise.
  10. Return of Joint Defense Information. At the resolution of the Lawsuit, the Parties and Counsel shall within thirty (30) business days, return to the producing Party, or destroy, all Joint Defense Materials provided to that Party by the other Parties and shall provide written confirmation of the same.
  11. No amendment or modification of this Agreement shall be effective unless it is in writing and signed by the other members of the Joint Defense Group.
  12. Governing Law. This Agreement is governed by the laws of the State of Nevada and may be enforced by any of the parties to this Agreement in any court of appropriate jurisdiction.  The Joint Defense Group members agree that the rights, privileges and interests protected by this Agreement are unique and that any violation of this Agreement will result in irreparable harm and injury to the other members.  Therefore, the Joint Defense Group agrees that the terms of this Agreement may be enforced by appropriate injunctive or other equitable relief.  The Joint Defense Group further agrees that this paragraph is not intended to limit the rights or remedies of the parties to this Agreement in any manner.
  13. Actions Between Members of the Joint Defense Group. For avoidance of doubt, the Joint Defense Group’s community of interest shall not include any claims, actions, proceedings or suits by any member of the Joint Defense Group against any other member of the Joint Defense Group.
  14. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all counterparts taken together shall constitute one agreement.  A telefax or PDF signature on a copy of this Agreement shall be deemed as effective and binding as if it were an original signature.
  15. Entire Agreement. This Agreement constitutes the complete agreement of the Parties with respect to the subject matter hereto, and memorializes and supersedes any prior or written agreements, and applies to all prior and future communications and exchanges of Joint Defense Materials.
  16. Confidentiality of Agreement. This Agreement and its terms are confidential and may not be produced or disclosed in discovery or offered in evidence in any proceedings, for any purpose, except to prove its existence and the agreement of the Parties hereto.

IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the date and year first written above.

 

 

 

 

Dated this __ day of {DATE}

 

{FIRM NAME}

 

____________________________________

{ATTORNEY NAME}

 

Attorneys for {PARTY NAME}

 

 

 

 

Dated this __ day of {DATE}

 

{FIRM NAME}

 

___________________________________

{ATTORNEY NAME}

 

Attorneys for {PARTY NAME}

 

Dated this __ day of {DATE}

 

{FIRM NAME}

 

 

___________________________________

{ATTORNEY NAME}

 

Attorneys for {PARTY NAME}

Dated this __ day of {DATE}

 

{FIRM NAME}

 

 

____________________________________

{ATTORNEY NAME}

 

Attorneys for {PARTY NAME}

 

EXHIBIT A

UNDERTAKING AND AGREEMENT TO BE BOUND BY JOINT DEFENSE AGREEMENT

I hereby certify that I have reviewed and understand the attached Joint Defense Agreement (“Agreement”) entered into among the various signatories thereto, and that I hereby confirm that I will comply with and be bound by the attached Agreement and each of its provisions in all respects.  I understand that Joint Defense Information is confidential and shall be used only in accordance with the terms of this Agreement, and that the obligations of this Agreement remain in force even upon dismissal or settlement of the Lawsuit.

I further certify that I am authorized to sign this agreement on behalf of any other entity by which I am employed and which will do any work related to this engagement and, in doing so, bind not only myself but also all other personnel of such entity, and that I will take reasonable steps to ensure compliance by such other personnel with the attached Agreement.

Date:_____________________________________________

Signature:_________________________________________

Name:____________________________________________

Title:_____________________________________________

Company:_________________________________________

 

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Please see http://nevadalaw.info/disclaimer

 
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