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In re Grand Jury Subpoena - 274 F.3d 563 (1st Cir. 2001)

Rule:

The joint defense privilege protects communications between an individual and an attorney for another when the communications are part of an ongoing and joint effort to set up a common defense strategy. Because the privilege sometimes may apply outside the context of actual litigation, what is called a joint defense privilege is more aptly termed the common interest rule. Even when that rule applies, however, a party always remains free to disclose his own communications. Thus, the existence of a joint defense agreement does not increase the number of parties whose consent is needed to waive the attorney-client privilege; it merely prevents disclosure of a communication made in the course of preparing a joint defense by the third party to whom it was made.

Facts:

The subsidiary pleaded guilty to tax fraud and waived any claim of privilege as part of its cooperation in the grand jury investigation of the subsidiary's present and former officers, employees, and customers. The intervenors claimed that the subsidiary was a party to joint defense agreement with the officers, and thus the subsidiary could not waive their attorney-client and work product privileges with regard to the requested documents.

Issue:

Could the subsidiary waive their attorney-client and work product privileges with regard to the requested documents, notwithstanding that the subsidiary was a party to joint defense agreement with the officers?

Answer:

Yes

Conclusion:

The appellate court held, however, that the subsidiary's waiver applied to the requested documents, since the intervenors made no allegations that communications between the lawyer and the officers were made in the officers' personal rather than corporate capacities. Such non-segregable communications were thus waivable by the subsidiary regardless of the alleged oral joint defense agreement, and the agreement also did not bar the subsidiary's waiver of the work product privilege since, at the time of the agreement, there was no anticipated litigation or investigation. In any event, the intervenors' failure to identify the documents for which privileges were claimed precluded the intervenors' privilege claims.

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