JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT
Confidential Attorney-Client Communication
This document sets forth the Joint Defense and Confidentiality Agreement (the "Agreement") by and between the undersigned counsel and their law firms (collectively, "Counsel") and their respective clients (collectively, "Clients").
1.Scope of Agreement. This Agreement pertains to any and all factual and legal matters alleged in, arising from, or relating in any way to the government's prosecution of CASE NUMBER AND DEFENDANTS NAMES, pending in the San Diego Superior Court, and any potential criminal violations of any kind arising from ongoing investigations related to this case which involve DEFENDANTS NAMES and any related persons or entities, including, without limitation, all matters relating to: (a) the underlying facts, investigation, prosecution and defense of these matters; and (b) any and all related pending or future criminal, administrative or civil investigations or proceedings by agencies or officers of the United States, any State, and/or any County (the "Matter").
2. Prior Communications. To the extent that Counsel have previously been in communication with each other regarding the Matter, their communications and work product are subject to the joint defense privilege and are now subject to this Agreement.
3.Common Interest in Defense.Counsel and the Clients recognize that because of the nature of the Matter and the relationship among the Clients, there are numerous legal and factual issues common to the defense of each Client. Thus, joint efforts in preparation for the Clients' defense are essential. Counsel and the Clients believe that the Clients have mutual interests that relate to the common defense of the Clients in the Matter. Counsel believe that participation by each of them is necessary to protect the best interests of their respective Clients, and that without such participation, Counsel cannot fully advise and represent their respective Clients. Counsel wish to work together to pursue the common interests of their respective Clients without waiving applicable rules of privilege and confidentiality as to any non-signatories to this Agreement ("Third Parties") who are, or potentially could be, adverse to their respective Clients.
4.Confidentiality and Applicability of Joint Defense Doctrine.Counsel and the Clients understand and agree that all oral and written communications between and among the undersigned parties to this Agreement, including but not limited to attorney work product, conversations, documents, interview memoranda, evidence, and the results of research or investigation ("Joint Defense Communications") are subject to this Agreement, and further agree that (a) the fact that particular Joint Defense Communications have been made between parties to this Agreement, (b) the contents of such Joint Defense Communications, and (c) any memoranda or other work product containing, referring to, or reflecting such Joint Defense Communications, shall remain confidential and protected from disclosure to any Third Party by each Client's attorney-client privilege, each Counsel's work-product doctrine immunity from discovery production, and the "joint defense doctrine" recognized in such cases as United States v. McPartlin, 595 F.2d 1321, 1336-37 (7th Cir.), cert. denied, 444 U.S. 833 (1979); Hyundai v. United States, 355 F.2d 183 (9th Cir. 1965); and Continental Oil Company v. United States, 330 F.2d 347 (9th Cir. 1964). As indicated in those cases, the sharing of information for mutual benefit is not a waiver of applicable privileges or work product rules relating to discovery obligations. In other words, no sharing of information under this Agreement shall be deemed to be a waiver of any otherwise applicable privilege or work product protection.
5.Each Client Understands the Client is Represented Only By the Client's Own Attorney(s). Each Client who is a party to this Agreement understands and acknowledges that the Client is represented exclusively by the Client's own attorney(s) in the Matter. While Counsel representing other Clients have a duty under this Agreement to preserve the confidences disclosed in Joint Defense Communications, they will not act for any party other than their own Client(s) in the Matter. In other words, each Client understands and agrees that this Agreement itself does not, and will not, create any attorney-client relationship with any other Client's attorney(s). Each Client expressly acknowledges that Counsel representing other Clients owe an uncompromising duty of loyalty to their own respective Clients, and to no other party.
6.Agreement to Share Information.To further the mutual interest of the Clients, Counsel and the Clients agree:
(a)To share and exchange among themselves, as each Counsel deems appropriate given the unique interests and concerns of his or her Client, evidence, witness statements, interview summaries, memoranda of law, debriefing memoranda, factual summaries, transcript digests, documents, legal strategies, intelligence, confidences, and other secrets for the limited and restricted purpose of assisting Counsel in protecting the rights and interests of their respective Clients; and
(b)If Counsel so chooses, to mark all materials exchanged pursuant to this Agreement with the legend "CONFIDENTIAL AND PRIVILEGED COMMUNICATION, PRODUCED PURSUANT TO JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT".
7.Agreement Not to Disclose to Third Parties.Counsel and the Clients agree not to reveal to any Third Party any information received under this Agreement, except as follows:
(a) A party to this Agreement who receives Joint Defense Communications may communicate that same information to a Third Party only with the advance, written consent of the party who contributed it to the joint defense effort;
(b) A party to this Agreement who receives Joint Defense Communications may communicate that same information to another party to this Agreement only with the advance, explicit verbal or written consent of the party who contributed it to the joint defense effort;
[Footnote 1: : This paragraph recognizes that certain parties may have greater common interest with some other parties on certain issues. Thus, each party may choose to share information with some but not all parties to the Agreement. It is the prerogative of the attorney contributing Joint Defense Communications to determine, based on his/her assessment of his/her Client's best interests, whether or to which parties to the Agreement, any such Joint Defense Communications will be disclosed. Similarly, this Agreement does not preclude any attorney contributing Joint Defense Communications from disclosing his or her own independently derived information to any Third Party.
]
and
(c) A party to this Agreement who receives Joint Defense Communications may communicate that same information pursuant to a compulsion order from a court of competent jurisdiction. Each party to this Agreement agrees that if the party receives any summons, subpoena or similar process, or any oral or written request to produce information or material which includes Joint Defense Communications, the party will immediately notify all other parties and provide not less than five (5) court days notice before production, in order to permit other parties to intervene. If five court days notice cannot be provided because of the return date of the process, the party upon whom the demand or request is made agrees to bring a motion to stay the proceedings in order to allow provision of five court days notice to other parties.
8.Agreement to Use Information For Joint Defense. The parties agree that all Joint Defense Communications, and all information derived therefrom, may be used for no purpose other than preparation in furtherance of a joint defense to the Matter.
9.Sharing of Information Does Not Create a Privilege Regarding Facts that Are Not Otherwise Privileged.The parties recognize and agree that facts and other information which are not otherwise privileged from disclosure shall not become privileged simply because such facts or other information may be shared in a Joint Defense Communication. However, even if the underlying information may not be privileged, the joint defense and work product privileges do protect against disclosure of: (a) the fact that particular Joint Defense Communications have been made among parties to this Agreement; (b) the contents of such Joint Defense Communications; and (c) any memoranda or other work product containing or referring to such Joint Defense Communications.
10.Prior Information Not Subject to Agreement.Except as provided in Paragraph 2 above, any information already in the possession of a party to this Agreement is not brought within the Agreement by the subsequent receipt of the same information from another party to this Agreement and is not subject to the terms of this Agreement. In other words, such information may be disclosed or used in any manner without the consent of any party to this Agreement to the extent that it could be disclosed or used prior to the execution of this Agreement.
11.Agreement Fully Explained; Waiver of Conflict.Counsel have fully explained the terms of this Agreement to their respective Clients and are fully satisfied that their respective Clients: (a) understand the terms of this Agreement; (b) agree to abide by this Agreement; and (c) authorize their respective attorneys to execute this Agreement. In addition:
(a)Counsel have fully advised their respective Clients that it is possible that other parties to this Agreement may later become witnesses against the Client or hold a position adverse to that of the Client.
(b)Counsel have fully explained to their respective Clients the limitations on direct and derivative use of any privileged information obtained pursuant to this Agreement.
(c)Counsel and the Clients represent that they have considered the foregoing and believe that the benefits of being a party to this Agreement outweigh any of the limitations imposed by the Agreement. Therefore, as a condition precedent to the receipt of any Joint Defense Communications pursuant to this Agreement, Counsel and the Clients agree and represent that they will not assert any future claim that any attorney who is a party to this Agreement is barred from continuing his representation in the Matter by virtue of his receipt of Joint Defense Communications under this Agreement.
12.Counsel's Duty to Zealously Represent Own Client.Counsel and the Clients understand and acknowledge that each attorney who is a party to this Agreement has an obligation to zealously represent his or her own Client to the exclusion of all other interests. Nothing in this Agreement shall be construed to affect the separate and independent representation of each Client by that Client's attorney according to what the attorney believes to be in the Client's best interests. In particular, the parties recognize:
(a)Before the Matter concludes, each attorney may need to, and is free to take action which may be contrary to the interest of other parties to this Agreement. These actions may include, but are not limited to: (1) advising a Client to cooperate with the government; (2) generating and disclosing evidence or information (other than Joint Defense Communications) to the government or Third Parties; and (3) cross-examining other Clients at a trial or other proceeding, should such other Clients testify.
(b)The parties to this Agreement have the right to conduct separate witness interviews or otherwise undertake independent investigative efforts. Any party
undertaking such separate investigative efforts is free to disclose any information obtained pursuant to those independent efforts to any Third Party or to use the information in any manner that party desires, without the consent of any other party to this Agreement.
13.No Party to This Agreement Has Agreed or Entered into Active Negotiations to Cooperate or Testify. Each party to this Agreement represents that he or she has not (a) entered into any cooperation arrangement or any active negotiations for cooperation with any agency of the United States, any State, and/or any County; (b) entered into any active negotiations or agreed to testify as a witness on behalf of the United States, any State, and/or any County agency; or (c) entered into active negotiations or agreed to serve as an informant on behalf of the United States, any State, and/or any County agency with respect to the Matter or any related investigation or criminal, administrative or civil proceeding. It is understood, however, that this Agreement is not intended to, and does not prevent or inhibit any party from entering into cooperation arrangements with the government.
14.Agreement to Notify of Cooperation Arrangement or Active Negotiations for Cooperation.Any party to this Agreement who enters into active negotiations for cooperation or a cooperation arrangement with any Federal, State and/or County governmental agency with respect to the Matter shall immediately notify all other parties of that fact, and immediately withdraw from this Agreement. Upon withdrawal, the cooperating party and his or her attorney shall return all Joint Defense Communications to the parties that provided them, including copies, summaries, excerpts or other written memorializations of the same.
(a) If it is the position of the attorney representing a cooperating Client that notification will somehow undermine his or her Client's interests, the attorney shall nevertheless be required to withdraw from this JointDefenseAgreement and return any and all Joint Defense Communications (including all copies, summaries, excerpts or other written memorializations of the same) shared by or among the parties to this Agreement. Under no circumstances will the attorney or the cooperating Client attend a joint defense meeting or discussion, or participate in any other form of Joint Defense Communication, after the point in time in which active negotiations for cooperation have been undertaken or any formal or informal, tentative or firm, arrangement, agreement, understanding or commitment has been made with any agency of the United States, any State and/or any County regarding the Client's cooperation, either by the attorney or the cooperating Client.
(b)This provision is designed to prevent an invasion of the defense camp and the need for subsequent litigation regarding such a situation.
[Footnote 2: : See United States v. Mastroianni, 749 F.2d 900, 908 (lst Cir. 1984) (informer authorized by DEA agents to attend a joint-defense meeting on pretense of insuring informer's safety and to gain information regarding future "crimes"; information obtained was used to prosecute all defendants in grand jury and trial); Bishop v. Rose, 701 F.2d 1150, 1157 (6th Cir. 1983) (defense camp invaded when handwritten statement detailing events to attorney was published by agents of Sheriff's Department to District Attorney); Briggs v. Goodwin, 698 F.2d 486, 494-95 (D.C. Cir. 1983) (Bivens-type action against special prosecutor who misrepresented to court and defense counsel the fact that one of the witnesses, who was subpoenaed to testify at a federal grand jury and was present in multiple joint-defense meetings, was a paid undercover FBI informer; the informer passed information to FBI agents and the Justice Department concerning joint-defense strategy, facts related to defense investigation and the contents of a jury-selection survey); United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978) (DEA and Bronx District Attorney's Office authorized informer to attend joint defense meetings with attorney who represented co-defendants in narcotics prosecution without disclosure of informer status).]
15.Cooperation Agreement; Consent to Use Information Exchanged Pursuant to This Agreement. Any Client who enters into active negotiations for cooperation or a cooperation arrangement with the government, or who testifies in any criminal, administrative or civil proceeding arising from the Matter, and that Client's Counsel, consent and agree that any other party to this Agreement may use for defense proposes any Joint Defense Communications provided by that Client or by his or her Counsel. This specifically permits use of contributed Joint Defense Communications in cross-examining the cooperating, testifying Client and permits presentation of such by any other party at any point in the proceedings.
16.Obligation to Withdraw; Divergence of Interest.Should the interest of any Client diverge from the common interest of other parties to this Agreement, that Client, and Counsel for that Client, shall withdraw from this Agreement. No party to this Agreement whose interests diverge from the common interests of the other parties to this Agreement shall accept or request from any party to the Agreement any Joint Defense Communications.
17.Right to Withdraw; Termination is Prospective Only.Each party to this Agreement has the right to terminate his or her participation at any time. Such termination shall be effective upon tendering written notice to each party and returning to each party all Joint Defense Communications received, and all copies, summaries, excerpts or other written memorializations of the same. Following the withdrawal of any party, this Agreement shall no longer be operative as to subsequent communications between that party and the remaining parties, but shall continue to apply fully to all Joint Defense Communications prior to termination of the withdrawing party's participation. In other words, a withdrawing party remains bound to maintain the confidentiality of Joint Defense Communications received under this Agreement. Termination of a party's participation under this Agreement shall not operate as a waiver or authorize any violation of this Agreement. Furthermore, following the withdrawal of any party to this Agreement, the Agreement shall continue to apply fully to all remaining parties.