Dundee Ducks

Joint Defense Agreements Discoverable


Apr 21


Weissman invoked the privilege of the defence to ensure that his own confessions were not used against him. To prove his right to privilege, Weissman`s lawyer stated that at the beginning of the meeting he had asked the business advisor to agree to the meeting being held in accordance with a JDA. According to Weissman`s lawyer, the lawyer agreed. However, the business advisor had another recollection of the meeting and explained that there was never any mention of jDA. There are no rules requiring JDA parties to commemorate their agreement in writing; in fact, many JDAs are orally. However, participants who insist on oral agreements should welcome the risk involved. That is, the court may decide on a CCM, no. In the Tribunal`s view, the disclosure of the corridors did not serve the interests that justified the privilege. For example, communications were made outside the presence of a lawyer (although, as the court found, the lawyers were nearby) and were not made for the purpose of providing legal advice. The court simply characterized these communications as “a discussion of having a JDA member pass on his independent and non-legal research to another JDA member, while finding that he had sent the same research to his lawyer.” [9] In addition, the court stated that “the mere fact that the communications took place among the co-accused who had joined a common defence agreement was not sufficient to protect the statements from disclosure.” These agreements generally explain that the parties have a “common legal interest” and will not waive their legal and client privilege by exchanging information. I am quite inthiconic about these types of agreements, because if your client really has a “common legal interest” with someone else, then the law says that the client does not waive his privilege by giving the party the information of common interest covered by the privilege. To say on paper that a client has a common legal interest with another party does not create such an interest if it did not exist. On August 18, 2017, in the United States against Krug, the second circle, verified the limits of solicitor-client privilege under common defense agreements and refuted a district court decision to exclude the testimony of a cooperating co-accused.

This decision is a useful reminder of some good practices in participating in common defence agreements (or “common interest”) to ensure that communication is protected by privilege.