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Mind Your Step: Navigating Landmines in the Joint Defense Landscape
In the mass tort litigation context, where one plaintiff typically brings similar claims against numerous defendants within a particular industry, the coordination of defense efforts among codefendants can be a very prudent course of action. By banding together to develop a litigation strategy and common defense, competitor companies can pool their knowledge, expertise, and resources to achieve the most beneficial outcome for their respective clients. This practice, however, is fraught with landmines that can have a devastating effect on clients and practitioners alike.
In complex mass tort cases, different lawyers necessarily represent different clients with respect to issues of common concern. While formulating a joint defense is a collaborative effort, the attorneys involved in multi-defendant mass tort litigations must not lose sight of the fact that they may be sharing work product and confidential information with their competitors, which has the potential to leave clients exposed and pave the way for future litigation between codefendants. Additionally, in the absence of establishing preemptive safeguards prior to formulating a joint defense ' namely a carefully tailored joint defense agreement ' attorneys may run into a host of conflict of interest and waiver issues, unwittingly create an attorney-client relationship with other codefendants, and ultimately expose themselves to malpractice liability.
Accordingly, it is important for all mass tort defense attorneys to: 1) understand what benefits are achieved by engaging in a joint defense; 2) identify when a joint defense agreement may be utilized; 3) be cognizant of why it is crucial to draft a joint defense agreement carefully; and 4) learn how to draft a joint defense agreement that will best protect the interests of both attorney and client.
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