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 WEDNESDAY, FEBRUARY 15, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Ronald J. Levine, Partner, Herrick Feinstein , New York Patrick F . Linehan, Partner, Steptoe & Johnson , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Joint Defense Strategies 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
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 6
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 7
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? 8
How? Explain necessity Confirm conflict checks Provisions on when waiver and termination can occur Address settlements 9
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 10
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 11
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 12
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 13
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 www.steptoe.com 15
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 16
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 17
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 18
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 on 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 19
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 20
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 21
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