Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 109 Joint Defense (Continued from Page 9) information or otherwise waive privilege without the consent of all participants. With this added safe- guard, practitioners can protect against a court find- ing that the joint defense privilege was waived by a party’s unilateral disclosure of a confidential com- munication to a third party. While the joint defense or common interest privi- lege is recognized in some form by courts in all fifty states, the particulars of the privilege can vary be- tween jurisdictions. Co-defense counsel and their clients should thus be well-versed in how the privi- lege operates in their specific jurisdiction and/or un- der controlling choice of law rules. In federal court, for example, the operation of the joint defense privi- lege may differ depending on whether state privi- lege law or federal common law controls the partic- ular case.18 Thus, before entering into a joint de- fense agreement, practitioners should be aware of and fully disclose to their clients the risks and bene- fits associated with such arrangements. _____________________________________ * Chris McGrath is a partner in the Costa Mesa of- fice of Paul Hastings LLP, where he represent cli- ents in a variety of complex litigation matters. Chris Ramos is an associate in the Los Angeles office of Vedder Price, where he practices in the litigation group. The views expressed here are the authors’ and not those of Paul Hastings LLP, Vedder Price, their clients, or the FBA/OC. 1 See Waller v. Financial Corporation of America, 828 F.2d 579, 583 n.7 (9th Cir. 1987). 2 See United States v. Gonzalez, 669 F.3d 974, 980 (9th Cir. 2012). 3 See, e.g., Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308, 311 (N.D. Cal. 1987). 4 Restatement (Third) of Law Governing Lawyers § 76 reporter’s note, cmt. b (2000). 5 See, e.g., Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 289 (N.D. Cal. 2015). 6 California Sportfishing Protection Alliance v. Chi- co Scrap Metal, Inc., 299 F.R.D. 638, 646 (E.D. Cal. 2014). 7 In re Teleglobe Communications Corp., 493 F.3d 345, 364 (3rd Cir. 2007). 8 See Gonzalez, 669 F.3d at 980. 9 Id. at 979. 10 See Minebea Co. v. Papst, 228 F.R.D. 13, 17 (D.D.C. 2005). 11 See, e.g., King Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 2:06-cv-1797, 2011 WL 2623306, at *6 (E.D. Pa. July 5, 2011) (finding that documents exchanged between parties were not pro- tected even though the parties had executed a joint defense agreement). 12 See Lectrolarm Custom Systems, Inc. v. Pelco Sales, Inc., 212 F.R.D. 567, 572 (E.D. Cal. 2002) (“‘[O]nly those communications made in the course of an ongoing common enterprise and intended to further the enterprise are protected.’”) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)). 13 See, e.g., Securities Investor Protection Corp. v. Stratton Oakmont Inc., 213 B.R. 433, 439 (Bankr. S.D.N.Y. 1997). 14 See Restatement (Third) of Law Governing Law- yers § 76 cmt. f. 15 See, e.g., United States v. Henke, 222 F.3d 633, 638 (9th Cir. 2000). 16 See Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1997). 17 See, e.g., United States v. Stepney, 246 F. Supp. 2d 1069, 1075 n.2 (N.D. Cal. 2003). 18 See Fed. R. Evid. 501.