Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10Inside:  Joint Defense— Page 1  Magistrate Judge Karen E. Scott— Page 6 Practical Considerations for Defense Counsel Contemplating Joint Defense Arrangements By Christopher H. McGrath and Christopher R. Ramos* In lawsuits involving multiple defendants represented by separate attorneys, collaboration between each defendant’s counsel usually is necessary and often provides substantial strategic advantages. The coordination of defense efforts between different attorneys repre- senting different clients regarding issues of mutual concern, howev- er, frequently requires the disclosure of information that would oth- erwise be protected by the attorney-client privilege or work-product doctrine. In these instances, although the disclosure of confidential information to a third-party would ordinarily prevent attorney-client or work-product protection from attaching, the so-called “joint de- fense” (or “common interest”) privilege allows communications made between co-defense counsel to remain privileged so long as they are made in furtherance of a common defense goal. In other words, the doctrine permits communications between a client and his own attorney and attorney work-product to remain protected after the attorney shares them with attorneys for separately represented codefendants for purposes of pursuing a shared defense strategy.1 But application of the joint defense or common interest privilege is not limited to defendants in litigation, and in fact, “there is no re- quirement that actual litigation even be in progress.”2 For example, some courts extend the doctrine to protect communications made between parties to business transactions under certain circumstances where joint litigation is anticipated, to encourage a legal “environment in which businesses can share more freely information that is relevant to their transactions.”3 Indeed, because the doctrine “applies equally to two or more separately represented persons what- ever their denomination in pleadings and whether or not involved in litigation,” the Restatement (Third) of the Law Governing (Continued on Page 5) The Newsletter of the Federal Bar Association / Orange County Chapter Fall 2016