and Privilege Waivers Drafting Agreements That Minimize Risks and - - PowerPoint PPT Presentation

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Presenting a live 90-minute webinar with interactive Q&A

Strategic Use of Joint Defense Agreements in Litigation: Avoiding Disqualification and Privilege Waivers

Drafting Agreements That Minimize Risks and Maximize Benefits

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, FEBRUARY 15, 2017

Ronald J. Levine, Partner, Herrick Feinstein, New York Patrick F . Linehan, Partner, Steptoe & Johnson, Washington, D.C.

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Ronald J. Levine, Esq.

H e r r i c k , F e i n s t e i n L L P N e w Yo r k / N e w a r k , N . J . 2 1 2 - 5 9 2 - 1 4 0 0 r l e vi n e @ h e r r i c k . c o m w w w. h e r r i c k . c o m

Joint Defense Strategies

The Big Picture

 Joint Defense Privilege applies to communications

that are part of an ongoing and joint effort to establish a common defense

 Allows for communications without waiving

attorney-client privilege

 Not an independent privilege

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Benefits

 Allows industry to present aggressive, united

defense

 Consistency of defense positions  Uniform discovery and motion strategy  Coordination of knowledge and resources  Facilitates information sharing about judges,

venues, plaintiffs' lawyers, etc.

 Alert system for "copy cat" cases  Reduce costs and streamline

resources

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When?

• Active or threatened litigation (with exceptions)
• Share a common litigation-related interest
• Objective agreement among the parties
• Is the agreement in the best interests of your

client? …What if things fall apart or break down?

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How?

 Explain necessity  Confirm conflict checks  Provisions on when waiver and termination can

• ccur

 Address settlements

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Practical Considerations

 Coordination of motion practice– will competitors

agree on when, and before whom, motions should be brought?

 Coordination of settlement – will competitors share

information and their settlement strategies?

 Coordination of information – will competitors

share data and experts?

 Need not cooperate during entire litigation – can

be limited phases or issues

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Lessons Learned From Coordinating With Other Companies

 Need leadership to organize calls and prepare

agenda

 Need participants “in the know” about recent

developments

 Need to be able to screen participants  Need to be able to preserve security  Need to involve outside counsel to

share information among parties

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Suggestions For Coordination

 Expert Witness Bank  Deposition and Trial Transcript Bank  Designated “Gurus” who track settlements and

court decisions

 Exchange of Pleadings and Motion Papers

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Caution!

 Companies may not be on the same page  Competitors may be seeking a competitive

advantage

 Friend today can become enemy tomorrow  Outside counsel can change sides  One of the companies may settle (or may have

settled) and leave your company high and dry

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Joint Defense Agreements

Patrick F. Linehan 202-429-8154 PLinehan@steptoe.com

www.steptoe.com

Joint Defense/Common Interest Agreements

• Recurring Questions Regarding Joint

Defense/Common Interest Agreements

– Enforceability – Discoverability – Application Outside of Litigation Context

• Joint Defense Agreements in the Criminal context

– Generally – Impact of Yates Memo

• Ethical Considerations

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www.steptoe.com

The Enforceability of Joint Defense/Common Interest Agreements Recent Caselaw

• Importance of Commonality

– United States v. Gonzalez, 669 F.3d 974 (9th Cir. 2012)

• Business Interests vs. Legal Interests

– FSP Stallion 1, LLC v. Luce, 2010 WL 3895914 (D. Nev. Sept. 30, 2010)

• Use of Written Agreements

– Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, 2010 WL 2594828 (W.D. Okla. June 22, 2010)

www.steptoe.com

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The Discoverability of Joint Defense/Common Interest Agreements

Are JDAs themselves privileged?

Usually Not… – Pac. Coast Steel v. Leany 2011 WL 4572008 (D. Nev. Sept. 30, 2011) – Rodriguez v. Gen. Dynamics Armament & Technological Prods., Inc. 2010 WL 1438908 (D. Haw. Apr. 7, 2010) …Except Where Agreement May Contain Sensitive Information – Steuben Foods, Inc. v. GEA Process Eng’g, Inc., 2016 WL 1238785 (W.D.N.Y. Mar. 30, 2016)

www.steptoe.com

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Does the common interest doctrine apply in the absence of pending or anticipated litigation?

• Recent Caselaw

– Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 57 N.E.3d 30 (2016) – Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015) – United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007)

• The Delaware Rule: D.R.E. 502(b)(3)
• What Can Deal Parties Do Regarding Potential Privilege Waiver?

– Document basis for assertion of common interest – Use of written agreement – Hire new counsel for joint advice on joint issue – Limit information sharing to non-privileged communications pre-closing

www.steptoe.com

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Joint Defense Agreements in Criminal Cases

The DOJ’s Official Policy on JDAs Has Changed Over Time

• Under the Holder Memo (1999), a company’s decision to form a JDA was to

be considered by the government when deciding whether to bring charges against the company itself.

• Current U.S. Attorneys’ Manual:

– “The mere participation in a JDA does not render the corporation ineligible to receive cooperation credit, and prosecutors cannot request that a corporation refrain from entering into such agreements.”

• Until September 2015, the DOJ awarded cooperation credit to corporations
• n a spectrum based on the corporation’s degree of cooperation.
• Under new guidelines, issued in a memo by then-Deputy Attorney General

Sally Yates, the DOJ will no longer give any cooperation credit to corporations seeking leniency unless they divulge all facts about individual employee misconduct.

www.steptoe.com

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Joint Defense Agreements After the Yates Memo

• Companies must now balance the benefits of JDAs against the

potential loss of cooperation credit if the government decides a company has not sufficiently implicated individual employee wrongdoers.

• The Yates Memo may chill the entering into and the sharing of

facts pursuant to JDAs by leaving JDAs vulnerable to attack based on arguments that the parties lack a “common interest.”

– Handicaps company’s ability to conduct thorough internal investigation – Handicaps individual’s ability to defend itself in government investigation

www.steptoe.com

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Practice Pointers

• A written agreement setting forth the specific grounds for finding

commonality of interests and the terms of post-withdrawal sharing of information may be preferable.

• When client is a company:

– Seek feedback from government on its view of whether particular individuals have common interests with company and whether it is concerned about a JDA’s application in the civil litigation context. – When retaining separate representation for current employees, company counsel should consider the potential impact on the joint defense privilege.

• When client is an individual:

– Exercise care in what information it shares with company counsel and the manner in which that information is shared.

www.steptoe.com

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Ethical Considerations

• Creation of Attorney-Client Relationship

– United States v. Henke, 222 F.3d 633 (9th Cir. 2000) – City of Kalamazoo v. Mich. Disposal Serv. Corp., 125 F. Supp. 2d 219 (W.D. Mich. 2000) – ABA Opinion 95-395

• Risk of Disqualification

– Wilson P. Abraham Constr. Corp. v. Armco Steel Corp., 559 F. 2d 250, 253 (5th

• Cir. 1977)

– D.C. Bar Opinion 349

• Advance Waivers of Potential Conflicts

– All Am. Semiconductor, Inc. v. Hynix Semiconductor, Inc., 2008 WL 5484552 (N.D.

• Cal. 2008)

www.steptoe.com

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Practical Advice To Avoid Ethical Pitfalls

• Always include language in JDA that disclaims creation of

attorney-client privilege and all rights to seek disqualification

• f attorneys in joint defense group
• Include specific waivers in JDA:

– Cross-examination and possible impeachment of any defecting JD member – Seeking disqualifications based on lawyers’ moves to new firms – Express permission of other lawyers representing clients in matters adverse to other joint defense members

• Have lawyers sign JDA in individual capacity, not on behalf
• f firm

www.steptoe.com

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