Joint Defense Agreements Explicitly Approved in Illinois
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Joint Defense Agreements Explicitly Approved in Illinois

It is not uncommon for parties to a lawsuit, particularly co-defendants, to agree to share privileged information pursuant to their common interest in defeating an opponent or potential opponent. The common interest exception to the waiver rule for the attorney-client or work-product privilege has been widely adopted by the jurisdictions that have been called upon to recognize it. Illinois has likewise answered the call. The common-interest exception applies to statements made to further the parties' common interest, pursuant to a common-interest agreement, 1) by an attorney for one party to the other party's attorney, 2) by one party to the other party's attorney, 3) by one party to its own attorney, if in the presence of the other party's lawyer; and 4) from one party to another, with counsel present. The court ruled parties with a common interest to defeat an adversary in a case or potential case should be allowed to pool information and communicate with each other without fear of waiving a privilege.

Selby v O'Dea