Commercial Litigation and Arbitration

Unsigned Joint Defense Agreement — Privilege Upheld

The defendant in Carbajal v. Lincoln Ben. Life Ins. Co., 2007 U.S. Dist. LEXIS 86753 (D. Colo. Nov. 13, 2007), was one of three insurers covering the life of the plaintiff’s deceased husband. The insurance companies realized their common interest in the Carbajal disputes in or around December of 2003, and they sent written requests to each other for the exchange of information relating to the plaintiff. Two years later, a draft joint defense agreement was circulated but it was never signed. In response to the defendant’s objection that the “joint defense privilege” protected certain information, the plaintiff argued that there was no joint defense agreement and that the insurers were not even defendants in the same litigation. Held:

1. “Application of the joint defense privilege does not require that those to whom privileged information is disclosed must be parties to the same litigation,” as long as they have "a common interest about a legal matter."

2. The fact that the written agreement was unsigned — and a 30(b)(6) deponent was unaware that such an agreement had even been discussed — did not prove the absence of an agreement. It was sufficient that the insurance companies involved in plaintiff's claims had "a common interest about a legal matter," and that the information exchanged “(1) arose in the course of a joint defense effort and (2) was designed to further that effort.”

Privilege upheld.

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