The carefully worded joint defense agreement (JDA) can be a necessary tool for attorneys involved in multi-defendant civil proceedings. A JDA is bolstered by the so-called “joint defense privilege,” which has evolved from the oldest privilege for confidential communications, the attorney-client privilege. Despite its deep roots, practitioners may still question whether a JDA is enforceable and, if so, how a written agreement between co-defendants can shield otherwise unprivileged communications.
This article will examine the history of this privilege along with the underlying justification for its acceptance in the Commonwealth. Moreover, this article will suggest some practice pointers to make effective use of the JDA in the civil context.
