Why would any lawyer think that his Joint Defense Agreement, entered into with a co-defendant, was protected from production by the attorney-client privilege? Well, the lawyer for one of the Defendants in AP Atlantic, Inc., v. Crescent University City Venture, LLC, 2017 NCBC 48 did, but his position was rejected by NC Business Court Judge Bledsoe last week.
A JDA is a written agreement between separately represented parties with common legal interests (generally relating to pending or anticipated litigation) that allows the parties to share confidential information with each other without waiving the attorney-client privilege, work product privilege or any other applicable privilege.
These agreements generally declare that the parties have a "common legal interest" and that they will not waive their attorney-client privilege by exchanging information. I’m pretty unenthusiastic about these kind of agreements because if your client really does have a "common legal interest" with someone else, then the law says that the client doesn’t waive its privilege by giving the party with the common interest information that is covered by the privilege. Saying on paper that a client has a a common legal interest with another party doesn’t create such an interest if it didn’t exist in the first place.
As for the discoverability of a JDA, I don’t see why you would even pursue the production of a JDA. How it would help in proving your case that a Defendant had entered into a JDA? Or why you would put up a fight if one were requested from you, as it is not protected by any privilege.
The Plaintiff AP Atlantic, the general contractor on a construction project spawning litigation (don’t they all do that?) didn’t share my point of view. It wanted the owner of the project (Defendant Crescent) to produce its JDA with a non-party, Summit Contracting Group, Inc. Summit had been hired by Crescent to perform repairs done in connection with the project.
Judge Bledsoe dismissed the argument that a JDA was protected by the attorney-client privilege. He relied on a New York appellate decision — Fewer v. GFI Group, Inc., 78 A.D.3d 412 (N.Y. App. Div. 2010) for that conclusion. Op. ¶16.
Moreover, Judge Bledsoe ruled that Crescent and Summit did not share a common legal interest despite their declaration in their JDA that they did. The argument that Crescent ultimately would have to indemnify and defend Summit over claims regarding its repair work was unavailing, especially since no demand had been made on Summit with regard to its repairs, and it was not a party to the litigation. Op. ¶17.
This is probably a good point to say that my posts do not reflect the views of Brooks Pierce. There may be many lawyers at Brooks Pierce who think that JDA’s are essential. But not me.