Joint Defense Prosecution Agreements JDA JPA

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					              American Bar Association
          Forum on the Construction Industry




       You Have a Friend . . . Or Do You?:
Strategic Joint Defense/Prosecution Agreements in
              Construction Disputes




                       John E. Bulman
          Little Medeiros Kinder Bulman & Whitney
                        72 Pine Street
                Providence, Rhode Island 02903




            Presented at the 2012 Annual Meeting

          ABA Forum on the Construction Industry

                      April 26-28, 2012
                Bellagio Hotel, Las Vegas, NV


                         
           2012 American Bar Association
I.     Introduction*

       A joint defense or prosecution agreement (JDA/JPA) is formed between two or more

parties who wish to join forces to develop a legal strategy and share otherwise confidential

information for their mutual benefit and the furtherance of a common interest. The primary

advantages of entering into a JDA/JPA are that a consolidated effort can conserve individual

party resources and time, and the pair or group of parties can develop a stronger, more complete

legal case. Whether or when to enter into a joint agreement is not an absolute science and much

of the decision depends on the facts and circumstances of the individual client and matter. That

said, this article attempts to catalogue what a practitioner should consider before legally tethering

his/her client to another party. It also touches upon the discord that can arise between joint-

agreement parties after the JDA/JPA is in place, how to address these issues effectively, and

when there is no other choice but to abolish the JDA/JPA

       Before examining the strategic considerations, the fundamentals of JDA/JPAs must be

reviewed. Part I first presents the various moving parts of a JDA/JPA and distinguishes these

joint agreements from liquidation agreements. Part II then analyzes privilege and confidentiality

issues implicated by JDA/JPAs—the most frequently cited reason parties hesitate to enter into

these joint agreements. Finally, Part III offers some considerations a practitioner should review

before aligning his/her client with another party in a JDA/JPA and after the JDA/JPA proves to

be a burden rather than a benefit.

II.    Fundamentals

A.     Content of JDA/JPAs




*
  This article was written with the assistance of Katharine Kohm, associate at Little Medeiros
Kinder Bulman & Whitney PC                       1
       The most effective JDA/JPAs outline each party’s responsibilities to act and not act

during each stage of the joint arrangement: formation, maintenance, and dissolution. (See

Examples 1-3.) Regardless whether the parties to the JDA/JPA are represented by the same legal

counsel or by separate counsel, their agreement should include a waiver of any potential conflicts

of interest that could arise during or subsequent to the joint representation. The agreement must

establish which party or parties will make decisions regarding legal strategy and if disagreements

occur, the contingency plan—usually naming a certain party or neutral—to resolve the differing

opinions. Also, because formal adversarial proceedings often are avoided by settlement, it is

practical for the JDA/JPA to outline how the parties will approach settlement negotiations. The

division of legal fees between the parties may be stated in the JDA/JPA as well.

       Likely the most important provision included in a JDA/JPA, however, is a covenant that

all privileged information exchanged between the parties in connection with the dispute shall

constitute “Joint Defense Information” or “Joint Prosecution Information.” The covenant must

establish that this information will remain confidential and protected from disclosure to any third

party by the attorney-client privilege, attorney work product doctrine, and by the joint defense

and common interest doctrines. Requiring the parties to physically stamp the words “Joint

Defense Information,” “Joint Prosecution Information,” or an equivalent phrasing on any and all

documents shared pursuant to the JDA/JPA is a good rule of practice. This way, there is no

questioning the purpose of the documents or their intended coverage by the privilege. The

JDA/JPA also should establish that the covenant of confidentiality and attorney-client privilege

will survive dissolution of the relationship between the parties to the JDA/JPA regardless of

whether dissolution is at the conclusion of the original dispute or if the parties part ways before

resolution. Note that it is prudent to anticipate that the JDA/JPA could terminate prior to the

                                                  2
conclusion of the matter. Accordingly, the agreement should describe when and how a party may

withdraw from a JDA/JPA. For example, the agreement may establish a certain timeframe

within which a withdrawal must occur or may require the notification or consent of all parties to

the JDA/JPA before one JDA/JPA member may end the relationship.1

        Lastly, JDA/JPAs should prohibit the contracted parties from asserting any claims against

the other(s) that arise out of or pertain to the original dispute, at least until certain negotiated pre-

conditions are met.2 For example, if a judgment is entered against one party to the JDA/JPA and

that party could bring a claim for contribution/indemnity against another party to the JDA/JPA,

the agreement should allow the separate contribution/indemnification action to commence.

Likewise, if the relationship between the parties deteriorates and the joint relationship is

dissolved, the JDA/JPA should preserve the parties’ rights to proceed against the others.

B.      Liquidating Agreements are not quite the same as JDA/JPAs

        Sometimes called a liquidating agreement or a liquidation and consolidation agreement,

these arrangements are similar, but not identical to JDA/JPAs.3 Essentially they permit a party

with privity of contract with the owner, usually the general contractor, to assert a claim on behalf

of a party without privity of contract with the owner, usually a subcontractor. In exchange for

the general contractor pursuing the subcontractor’s claims, “the subcontractor conditionally

releases its claims against the general contractor pending [the general contractor’s] recovery

from the owner [for the subcontractor’s benefit].”4 If the subcontractor was not permitted to

“pass through” its claims to the general contractor, two actions would have to occur in order to

reach this same end result: one where the subcontractor sues the general contractor and then

another action where the general contractor sues the owner to recoup its loss to the

subcontractor.5 In addition to “provid[ing] the subcontractor with . . . a [more direct] avenue to

                                                    3
seek recovery from the owner, [liquidating agreements] also [offer subcontractors] the ability to

present a unified front against the owner with the [general] contractor.” 6 Given the joint-effort

character of liquidating agreements, these types of agreements are similar to JDA/JPAs.

However, use of JDA/JPAs is not restricted to situations were one party is lacking privity against

a third party. Moreover, JDA/JPAs have the added benefit of preventing the destruction of

attorney-client privilege when information is shared between parties. Accordingly, a liquidating

agreement is often combined with a JPA in order to protect the sensitive documents exchanged

during the prosecution of the subcontractor’s claims.

       With respect to liquidating agreements it is important to note that in some jurisdictions,

escaping the harsh effects of the privity requirement using these arrangements is limited. For

example, the general contractor usually is restricted from “pursu[ing] the subcontractor’s claims

[under a liquidating agreement] unless and until the general [contractor first] acknowledges

liability for them.”7 In some jurisdictions, a general contractor can offer to pay part of the

subcontractor’s claim, somewhat like an advance, and then sue the owner for the full amount of

the subcontractor’s claim.8 Other jurisdictions, for example in Connecticut, before a general

contractor may bring subcontractor pass-through claims against the state on a public project, “the

general contractor’s admission of liability [to the subcontractor must] be unconditional and

liquidated to a sum certain.”9

       Another limitation to liquidating agreements is presented by Severin v. United States.10

Based on the Severin doctrine, a general contractor may enter into a liquidating agreement with

any subcontractor, but the general contractor “may only ‘sponsor’ the sub[contractor]’s claims if

the general [contractor] itself is not the culpable party. In broader terms, the [owner] will not be

liable on the sub[contractor]’s pass-through claims if the general [contractor] would have [a]

                                                  4
defense to the claims” as against the subcontractor.11 The same preclusive effect to the

subcontractor’s “pass through” claims results if general contract contains a defense that the

owner can use to preclude general-contractor claims.12 In effect, the general contract can

preclude a general contractor from bringing a subcontractor’s claim against the owner even if the

particular defense is not contained in the subcontract.13 Although the general contractor cannot

“pass through” the subcontractor’s claim to the owner, the subcontractor still may have a remedy

if it separately brings its claim against the general contractor under the subcontract. Of course, if

the general contract is incorporated by reference into the subcontract, then the subcontractor will

not be able to bring its claim against the general contractor either.

       “Suffice it to say that the subcontractor is faced with a choice and a dilemma: it must

decide early in the dispute process whether it wants to go after the general [contractor], join with

it against the owner, or do both. A note of caution with liquidating agreements: The

subcontractor should make certain that it has some authority or influence over the owner/general

[contractor]’s settlement of claims. Without this authority, the general [contractor] is relatively

free [to] enter[] into a settlement that might disappoint the sub[contractor].”14

III.   Attorney-Client Privilege, Confidentiality, and the JDA/JPA

       Because the JDA/JPA (or the combination JPA/liquidating agreement) arrangement

requires a party to share information with the other party or parties in the course of forming and

maintaining their joint legal strategy, JDA/JPAs necessarily implicate attorney-client privilege

and attorney work-product issues. In effect, sharing information outside the direct attorney-

client relationship risks possible waiver of those privileges.15 However, as explained above, the

risk of waiver is diminished if the JDA/JPA establishes an express agreement that the parties will

preserve confidentiality.16 (See Example 2.) In order to preserve the privilege after disclosure to

                                                  5
another JDA/JPA party, courts generally require a showing that the two or more parties: (1) have

shared the information in the furtherance of a joint legal strategy,17 (2) have a common, albeit not

identical, interest,18 and (3) agreed that their communications are confidential.19 Although it is

not necessary to formalize the JDA/JPA in writing, it is obviously easier to prove the existence

of the agreement and the maintenance of privilege if a writing is created, and thus it is always

prudent to document the parties’ agreement in a writing signed by the parties.20 Also, keep in

mind that these joint agreements do not widen the scope of protected information; they only

expand the number of people allowed to view the information without losing the protections.21

For example, even if shared in the context of a joint agreement, business advice will not be

privileged.22

       Even if the parties properly execute a JDA/JPA, if the relationship later breaks down, it is

possible for the privilege to be voided or waived and the shared information then discoverable.

This risk is a primary reason why advocates must carefully evaluate whether entering into a

JDA/JPA is best for a client. For example, in In re Wright,23 Wright joined with

Johnson/Martineck under a JPA to pursue a single lawsuit alleging underpayment of royalties by

oil producers.24 After the litigation ended, Wright sued Johnson/Martineck for fraud and

conversion.25 In this second lawsuit, Wright obtained certain documents from Johnson/Martineck

by successfully arguing that the work-product privilege did not exist under their JPA.26 When

Wright later challenged an order compelling his production of privileged work product to

Johnson/Martineck, the appellate court likewise required Wright to produce the work product. 27

The court held that Wright effectively waived his right to claim that work product was privileged

under the JPA based on his prior position taken to obtain Johnson/Martineck’s work product. 28

The lesson learned is that to prevent later destruction of the privilege, it is important to include a

                                                  6
strong termination provision in the JDA/JPA. The provision should require that the JDA/JPA

parties will uphold privilege as between each other and also will not disclose any shared,

confidential information to a third party.29

IV.    JDA/JPA Strategy

A.     Timing

       Generally, a party should wait to enter into a JDA/JPA (and legally tether itself to another

party) until an actual dispute or claim is presented. A “claim” can arise in situations as innocent

as an unresolved change order. Once an actual claim does present itself, it is in a party’s best

interest to determine whether to enter into a JDA/JPA as soon as possible. Hesitation to enter

into an agreement with another party while sharing any information with that party can cause

communications that would otherwise be privileged to become discoverable. That said,

advocates need to evaluate carefully whether to enter into a joint agreement in the first place.

B.     Deciding whether to enter into the Joint Agreement

       As alluded to above, entering into a joint agreement is an attractive proposition. On one

hand, the parties can split the cost of expensive discovery, including document production,

document review, management, depositions, and trial preparation.30 But be aware that entering

into a joint agreement also has its drawbacks, namely it may prevent the use of information that

could strengthen your client’s case.31 For example, if your client is being accused of some

wrongdoing, e.g. not paying under a contract, it could be advantageous for the client to implicate

the “worse” defendant.32 Joining your client with this worse defendant clearly prevents the client

from taking advantage of this strategic route. Moreover, joining with other parties on the

defensive “could align your client with [these] less palatable [parties], leaving [your client]

‘tainted’ in the eyes of the fact-finder.” 33 That said, “entering into a joint defense agreement

                                                  7
with only the ‘bad’ guys . . . could help enforce [your client’s] common theory.”34 And

strength in numbers is sometimes a persuasive factor for a fact-finder. Determining whether to

enter into the agreement really is a balancing test that depends on the particular circumstances:

Ask whether the cost savings and information privileges outweigh the strategic disadvantages.

C.      Conflicts of Interest

        Another pre-agreement query for the JDA/JPA arrangement is whether your firm (and the

other joint parties’ firms) will be able to ethically represent the joint-agreement clients. If there

is the potential for conflicts of interest, entering into a JDA/JPA obviously does not make sense

for your client. Be aware that even if the JDA/JPA parties are not represented by the same legal

counsel, there still exists the possibility that irreconcilable conflicts of interest could arise after

the agreement is executed.35 For example, although each party to a JDA/JPA may have their

own counsel, “other parties to that agreement may come to consider you as their attorney.”36

Then, if the JDA/JPA parties later become adverse in another proceeding, these parties may have

a valid argument to disqualify you from representing your own client.37

        Once it is discovered that a firm representing one of the JDA/JPA parties had represented

an adverse party in a substantially related matter, that particular firm is disqualified and if the

sensitive information was shared within the group of joint-agreement attorneys, it also may

require the disqualification of the entire group.38 For example in Essex Chemical Corp. v.

Hartford Accident and Indemnity Co.,39 the Court disqualified all the law firms after holding that

a conflict of one firm was imputed to all of the attorney members of the joint-defense group and

created an “irrebuttable presumption” that each firm was privy to plaintiff’s confidential

information.40 This harsh decision was later reversed.41 Rather than automatically disqualifying

all of the law firms, there was a hearing to determine whether confidential information actually

                                                    8
was shared.42 The lesson is that if you are considering a JDA/JPA, require that the attorneys

representing the other JDA/JPA parties will perform a diligent conflict check before entering into

the agreement.

       Inadvertent conflicts also can arise if your law firm hires a new attorney. Be sure to ask

your new hire if he/she has ever worked with a client having a JDA/JPA and if so, find out the

names of all parties to that agreement.43 Run a conflict check on the parties to the new hire’s

previous joint agreements and if any of the parties are adverse to your client, determine if the

matters involved in those JDA/JPA arrangements are substantially related to your client’s.44 If

so, consider whether an ethical screen that limits the new hire’s access to your client documents

would be sufficient.45 Note that if the new hire previously accessed the confidential papers of

the adverse party, a screen may not be enough to prevent disqualification of your firm.46

       Another option aimed at preventing your firm’s disqualification is using certain

disclaimers in the group’s JDA/JPA. While not exhaustive, the following is a list of common

clauses involving conflicts of interest:

            “a disclaimer of any actual attorney-client relationship between an
             attorney and client [i.e. another JDA/JPA party] other than the pre-
             existing client of that attorney, and that no such relationship will be
             deemed to arise by implication (Important to avoid future waiver of
             privilege)
            a repudiation of the existence of any duty of loyalty (as opposed to a duty
             of confidentiality) between an attorney for anyone other than the
             attorney’s own client
            a waiver of the right to seek the disqualification of the attorney members
             based on access to joint-defense materials
            a waiver of the right to object to counsel for the other clients acting
             adversely towards them in this or other litigation
            an ethical screen limiting document access to only those attorneys
             actually working on the matter
            a representation that all of the attorneys have performed thorough
             conflict checks (This reduces the risk of vicarious disqualification)
            a method for clients and their attorneys to withdraw from the agreement
                                                 9
             and to provide notice to the other parties” 47

        And of course, specifically inform your client that entering into a JDA/JPA requires

his/her consent “to accept something less than what the Model Rules of Professional

Responsibility require.”48 Confidentiality, loyalty, and diligence are all implicated by a

JDA/JPA and a client “sacrifices some of his or her rights under the attorney-client relationship

to obtain the benefits of the agreement.” 49

D.      When the Interests of Parties to a JDA/JPA Do Not Actually Align

        Even the most diligent practitioners can find themselves caught in a situation where

newly discovered information or interactions with the other JDA/JPA parties and their counsel

reveal that proceeding with the JDA/JPA arrangement is just not going to work As discussed

above, a well-prepared JPA/JDA will have explicit procedures for terminating the relationship

(unilaterally or with the approval of all JDA/JPA parties) and a covenant that the attorney-client

privilege will be preserved. In effect, “[t]hat a joint defense may be made by somewhat unsteady

bedfellows does not in itself negate the existence or viability of the joint defense.”50 However,

after “the parties’ interests are restructured [with the termination of the JDA/JPA] ‘neither can

reasonably be allowed to deny to the other the use of information which he already had by virtue

of the former’s own disclosure.’”51 In other words, the former allies, now adversaries, can use

the disclosed information against each other.52 A contract provision in the JDA/JPA can prevent

this tactic,53 but it is “not an absolute privilege,” it is “a contract right.”54 Enforcement of a

contract right may require the filing of a separate action, whereas a privilege may be used to

preclude the admission of the disclosed information in the same proceeding.

        Fortunately, regardless of whether the former allies, now adversaries, may use the shared

information against the other, “[t]his does not mean, . . . that the rest of the world suddenly

                                                   10
becomes entitled to privileged information just because the internal structure of the joint defense

unit has been changed.”55 In effect, if your newly aligned adversary wanted to disclose to a third

party the information shared when your JDA/JPA was in effect, you would have a right to

prevent its use by the third party.56 “Joint defense privilege would be stripped of its purpose and

effectiveness if one party could unilaterally waive the privilege in favor of a third party, even if

the original defendants had become adverse.”57 That said, if the former ally was able to disclose

the information in a public forum—seemingly in violation of the contract right referenced

above—a third party now could use the information regardless of the privilege doctrine.

Accordingly, if an advocate determines that a JDA/JPA is no longer strategic, terminating the

JDA/JPA to prevent the further hemorrhaging of information to the other JDA/JPA parties is

prudent. This advocate can take solace that completing the termination will not automatically

allow third parties to suddenly be able to discover the same, but must recognize that third parties

may be able to obtain the shared information by other avenues.

V.     Conclusion

       JDA/JPAs are a powerful tool for a construction-dispute client. When common interests

align, these joint agreements can increase efficiency, reduce costs, and promote a more

developed legal strategy. However, entering into a JDA/JPA prematurely or without considering

conflicts-of-interest and attorney-client privilege implications can create an inconvenient and

strategically damaging situation for the client. Pre-agreement due diligence is the best way to

route out the possibility that the JDA/JPA will not be beneficial. However, even if post-

agreement circumstances reveal that the JDA/JPA arrangement is no longer strategically viable,

a party has the ability to gracefully exit without automatically causing the discoverability of the

information shared.

                                                 11
                                            ENDNOTES

1
    See Example 2, ¶¶ 31, 35.
2
    See Example 2, ¶ 34.
3
    See Example 3.
4
    THE CONSTRUCTION PROJECT: PHASES, PEOPLE, TERMS, PAPERWORK, PROCESSES 104 (Marilyn

Klinger & Marianne Susong eds. 2006).
5
    Gerard Ittig, Just Passin’ Through - Sponsored claims and the Severin Doctrine, available at

http://www.cablingtrends.com/ news-a-issues/codes-and-standards/82-just-passin-through-

sponsored-claims-and-the-severin-doctrine.html (last visited October 10, 2011).
6
    Id.
7
    Id.
8
    Id. (citing Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. Ct. App. 1967)). Many states

limit such agreements by requiring disclosure of the agreement’s terms to the court, opposing

party, and jury. See John E. Benedict’s “It’s A Mistake to Tolerate the Mary Carter Agreement,”

87 COLUMBIA L. REV. 368, 370, 370 n.11 (1987). Other states have outlawed the agreements

completely as void as against public policy. Id. at 382 n.64 (citing Lum v. Stinnett, 488 P.2d 347

(Nev. 1971)).
9
    Worth Const. Co. v. State Dept. of Public Works, No. HHDCV075011827, 2010 WL 4884266

(Conn. Super. Aug. 10, 2010) (explaining that this requirement is necessary to avoid the

preclusive effect of Connecticut’s sovereign immunity doctrine and noting that this “requirement

that the [general contractor’s] admission of liability [to the subcontractor] be unconditional and

liquidated is more restrictive than federal law regarding pass-through claims”) (citing Federal


                                                 12
Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 101, 680 A.2d 1321 (1996) and Wexler

Construction Co. v. Housing Authority, 149 Conn. 602, 605-07, 183 A.2d 262, 264-65 (1962)).
10
     99 Ct. Cl. 435 (1943).
11
     Gerard Ittig, Just Passin’ Through - Sponsored claims and the Severin Doctrine, available at

http://www.cablingtrends.com/ news-a-issues/codes-and-standards/82-just-passin-through-

sponsored-claims-and-the-severin-doctrine.html (last visited October 10, 2011).
12
     Jeremy Baker, Pass-Through Claims in Construction Litigation, International Law Office,

available at http://www.schiffhardin.com/publications/articles/passthrough-claims-in-

construction-litigation (May 29, 2007).
13
     Id. For example, “a waiver of consequential damages in the [general] contract would defeat a

subcontractor’s claim for consequential damages that is passed through to the [general]

contractor to be brought against the owner. This would be true even if there were nothing in the

subcontract or applicable law that would prevent the [general] contractor from being liable to the

subcontractor for consequential damages.” Id.
14
     Gerard Ittig, Just Passin’ Through - Sponsored claims and the Severin Doctrine, available at

http://www.cablingtrends.com/news-a-issues/codes-and-standards/82-just-passin-through-

sponsored-claims-and-the-severin-doctrine.html (last visited October 10, 2011).
15
     See, e.g., Hayden v. State, 972 So.2d 525 (Miss. 2007) (noting that “disclosure of documents

to third parties may lead to waiver of the attorney-client privilege” except where “made in

furtherance of the rendition of professional legal service to the client”); Newman v. State, 863

A.2d 321 (Md. 2004) (listing some exceptions, but recounting that “generally the presence of a

third party will destroy the attorney-client privilege”).


                                                  13
16
     Sample language: “Each Party agrees that all Joint Defense Information exchanged in

connection with the joint defense efforts in this case will be communicated in confidence for the

common purpose of securing legal advice and representation.” (See Example 2, ¶18.)
17
     Although the parties must be sharing the information in the context of developing a joint legal

strategy, most courts do not require that litigation actually is ongoing. Rather, forming a strategy

in the contemplation of litigation or with evidence of a dispute is usually enough to establish this

first requirement. See Raymond Road Associates, LLC v. Taubman Centers, Inc., No.

X02UWYCV 075007877S, 2009 WL 4069251 (Conn. Super. Ct. Oct. 30, 2009) (“The common

legal interest rule was intended ‘to protect the free flow of information from client to attorney . . .

whenever multiple clients share a common interest about a legal matter . . . . This rule requires

that . . . . [t]he parties claiming protection under the rule must share a ‘common interest about a

legal matter,’ but ‘it is . . . unnecessary that there be actual litigation in progress.’” (quoting

United States v. Schwimmer, 892 F.2d 237, 243-44 (2d Cir. 1989)). But see Lugosch v. Congel,

219 F.R.D. 220, 237 (N.D.N.Y. 2003) (“It is worth repeating, only those communications made

in the course of an ongoing common litigation enterprise with the intent to further the enterprise

are protected.” (citing Schwimmer, 892 F.2d at 243; In re Bevill, 805 F.2d at 126)).
18
     Courts usually do not require the parties to have perfectly identical interests. RESTATEMENT

(Third) of the Law Governing Lawyers § 76(1) cmt. e (2000) states that “[t]he interests of the

separately represented clients need not be entirely congruent” in order to maintain privilege

within the joint agreement. In fact, “[c]ommunications to an attorney to establish a common

defense strategy are privileged even though the attorney represents another client with some

adverse interests.” Eisenberg v. Gagnon, 766 F.2d 770, 787-788 (3d Cir.), cert. denied, 474 U.S.


                                                   14
946 (1985). At least one court has held that the “determination [of whether there is a common

interest] should focus on the . . . general purpose for which [the communication] is shared, rather

than on the relationship of the parties. Specifically, . . . courts should deem an interest

‘common’ where two or more parties share a sufficiently similar interest and attempt to promote

that interest by sharing a privileged communication.’” Hanover Ins. Co. v. Rapo & Jepsen Ins.

Services, Inc., 870 N.E.2d 1105, 1113 (Mass. 2007) (emphasis added). It is important to

distinguish between a common legal interest and a common business interest. The latter is not a

justification for entering into a JDA/JPA and courts have refused to uphold the confidentiality

and privilege agreed to therein. See Walsh v. Northrop Grumman Corp., 165 F.R.D. 16, 19

(E.D.N.Y. 1996) (declining to extend privilege where the parties claimed a joint business

strategy); Bank Brussels Lambert v. Credit Lyonnais, 160 F.R.D. 437, 447–48 (S.D.N.Y. 1995)

(establishing that the disclosure of an opinion letter to facilitate a joint business prospect waived

attorney-client privilege); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 512 (D. Conn. 1976)

(holding that privilege was waived because the parties did not have legally sufficient common

interest, rather they were negotiating a business transaction).
19
     For example, in United States v. W.R. Grace, 439 F. Supp. 2d 1125 (D. Mo. 2006), a criminal

case applying federal law (conspiracy to violate the Clean Air Act), the court determined that

“co-defendants sharing information pursuant to a joint defense agreement retain the right to

assert the attorney-client privilege over the information shared.” Id. at 1127. The court in W.R.

Grace held that “Grace has not waived its privilege by allowing the individual [d]efendants

access to the documents pursuant to a joint defense agreement..” Id.; see also United States v.

Henke, 222 F.3d 633, 637 (9th Cir. 2000) (holding that a joint defense agreement creates an


                                                 15
implied attorney-client relationship between co-defendants and thereby extends the attorney-

client privilege).
20
     See Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 870 N.E.2d 1105, 1113 (Mass.

2007) (“Because the common interest doctrine depends entirely on communications that fall

within the attorney-client privilege and is an exception to waiver of the privilege, and because

the attorney-client privilege does not depend on a writing, the common interest doctrine [also]

does not require a writing . . . . Although a writing may be evidence of the existence of

confidential communications protected by the attorney-client privilege, it does not give rise to

the privilege. The common law, as well as our rules of professional conduct, are the wellspring

of the privilege.” (citing RESTATEMENT (Third) of the Law Governing Lawyers § 76(1) comment

c (2000)); see also Minebea Co., Ltd. v. Papst, 228 F.R.D. 13, 16 (D.D.C. 2005) (“Obviously, a

written agreement is the most effective method of establishing the existence of a joint defense

agreement, although an oral agreement whose existence, terms and scope are proved by the party

asserting it, may be enforceable as well.”).
21
     Clifton R. Jessup, Jr. and Harrel L. Davis III, What Happens When We Stop Singing Kumbaya

at the Fishing Camp? A Discussion of Joint Interest Agreements When Participants’ Interests

Diverge, available at http://www.utcle.org /eLibrary/preview.php?asset_file_id=4397.
22
     See Walsh, 165 F.R.D. at 19 (declining to extend privilege where the parties claimed a joint

business strategy); Bank Brussels Lambert, 160 F.R.D. at 447–48 (establishing that the

disclosure of an opinion letter to facilitate a joint business prospect waived attorney-client

privilege); SCM Corp., 70 F.R.D. at 512 (holding that privilege was waived because the parties

did not have legal common interest, rather they were negotiating a business transaction).


                                                 16
23
     2005 WL 913441 (Tex. Ct. App. 2005).
24
     Id.
25
     Id.
26
     Id.
27
     Id.
28
     Id.
29
     Sample language: “A Party’s withdrawal from this Agreement shall not affect the duty of

confidentiality which that Party and its counsel have undertaken by virtue of having entered into

this Agreement, and such Party and its counsel shall remain obligated to preserve the privileges

and confidentiality of all information exchanged pursuant to this Agreement.” (See Example 2, ¶

19.)
30
     Clifton R. Jessup, Jr. and Harrel L. Davis III, What Happens When We Stop Singing Kumbaya

at the Fishing Camp? A Discussion of Joint Interest Agreements When Participants’ Interests

Diverge, available at http://www.utcle.org /eLibrary/preview.php?asset_file_id=4397.
31
     Id.; see also Jerold S. Solovy & Robert Byman, “What’s A Swell Litigant Like You Doing In

a Joint Agreement Like This?” available at http://www.jenner.com/files/tbl_s69NewsDocument

Order/File Upload500/2248/05_28 _2001_ Joint_Defense_Agreements.pdf.
32
     Clifton R. Jessup, Jr. and Harrel L. Davis III, What Happens When We Stop Singing Kumbaya

at the Fishing Camp? A Discussion of Joint Interest Agreements When Participants’ Interests

Diverge, available at http://www.utcle.org /eLibrary/preview.php?asset_file_id=4397.
33
     Id.
34
     Id.


                                                17
35
     Patrick M. Ryan, Joint-Defense Agreements -- The Hidden Dangers, available at

http://library.findlaw.com /2003/Dec/17/133240.html.
36
     Jerold S. Solovy & Robert Byman, “What’s A Swell Litigant Like You Doing In a Joint

Agreement Like This?” available at http://www.jenner.com/files/tbl_s69NewsDocumentOrder/

FileUpload500/2248 /05_28_2001_ Joint_Defense_Agreements.pdf.
37
     Id.; see also City of Kalamazoo v. Michigan Disposal Service Corp., 125 F. Supp. 2d 219

(W.D. Mich. 2000) (holding that because counsel represented GM in a JDA with several parties,

when one of those parties later became adverse to GM, counsel was disqualified).
38
     Patrick M. Ryan, Joint-Defense Agreements -- The Hidden Dangers, available at

http://library.findlaw.com /2003/Dec/17/133240.html.
39
     975 F. Supp. 650 (D.C.N.J. 1997).
40
     Id.
41
     993 F. Supp. 241 (D.C.N.J 1998).
42
     Id.
43
     Patrick M. Ryan, Joint-Defense Agreements -- The Hidden Dangers, available at

http://library.findlaw.com /2003/Dec/17/133240.html.
44
     Id. See generally Jerold S. Solovy & Robert Byman, “What’s A Swell Litigant Like You

Doing In a Joint Agreement Like This?” available at http://www.jenner.com/files/tbl_s69

NewsDocumentOrder/File Upload500/2248/05_28 _2001_ Joint_Defense_Agreements.pdf.
45
     Patrick M. Ryan, Joint-Defense Agreements -- The Hidden Dangers, available at

http://library.findlaw.com /2003/Dec/17/133240.html.
46
     Id.


                                                18
47
     Id.
48
     Eugene M. LaFlamme and Matthew R. Rosek, The Unknown Litigation Tool: Common

Interest Privilege, 82 Wisconsin Lawyer 14 (Dec. 2009).
49
     Id.
50
     In the Matter of Grand Jury Subpoena Duces Tecum, 406 F. Supp. 381, 392 (S.D.N.Y 1975).
51
     Jerold S. Solovy & Robert Byman, “What’s A Swell Litigant Like You Doing In a Joint

Agreement Like This?” available at http://www.jenner.com/files/tbl_s69NewsDocumentOrder/

FileUpload500/2248 /05_28_2001_ Joint_Defense_Agreements.pdf (quoting In the Matter of

Grand Jury Subpoena Duces Tecum dated November 16, 1974, 406 F. Supp. 381, 394 (S.D. N.Y.

1975)).
52
     Id.
53
     See Example 2, ¶¶ 28, 29.
54
     Id.
55
     Securities Investor Protection Corp. v. Stratton Oakmont, Inc., 213 B.R. 433, 438 (S.D.N.Y.

1997).
56
     Id.
57
     Madison Management Group, Inc. v. Fogel, 212 B.R. 894, 898 (N.D. Ill. 1997).




                                                 19
                              EXAMPLE 1 - Two Defendants Represented by the Same Attorney


                 JOINT REPRESENTATION AGREEMENT and
       JOINT DEFENSE, PRIVILEGE, AND CONFIDENTIALITY AGREEMENT

       This JOINT REPRESENTATION AGREEMENT and JOINT DEFENSE, PRIVILEGE,

AND CONFIDENTIALITY AGREEMENT (collectively the “Agreement”) is entered into by

and among WEST ARCHITECTS, INC. (“WEST”), EAST DESIGN, INC. (“EAST”), and the

law firm of SMITH JONES LLP (“SMITH”) (individually referred to herein as “PARTY” or

collectively as “PARTIES”) on this _____ day of January, 2011, which memorializes the

agreements and understandings previously reached with respect to WEST and EAST’s common

interest relative to on-going litigation captioned School District No. 123 v. Fire Protection, Inc.,

et al., Case No. 1099, 1st Judicial Circuit Court, Barnstable County, Massachusetts (the

“Lawsuit”).

                                              Recitals

1. School District No. 123 (“Claimant”) has filed the Lawsuit against WEST, EAST and others,

   alleging negligent design and construction of the sprinkler systems in various schools (the

   “Projects”) designed by WEST and EAST.

2. WEST was the architect of record for the Projects, and EAST was WEST’s consulting

   mechanical engineer for the Projects.

3. WEST and EAST both deny any negligence or other malfeasance in the performance of their

   professional services for the Projects.

4. Both WEST and EAST acknowledge that they have been operating under a common interest

   agreement and now wish to memorialize that arrangement in this Agreement. The provisions

   of this Agreement shall apply not only to common-interest “Joint Defense Information” (as

   defined in Paragraph 15, infra) shared after the date of this Agreement, but also to common-

   interest “Joint Defense Information” shared prior to the date of this Agreement.
                              EXAMPLE 1 - Two Defendants Represented by the Same Attorney


5. Both WEST and EAST believe that it is in their best interest to share information and

   resources in defense of any allegations raised in the Lawsuit and to use privileged

   communications and work-product as part of a joint-defense effort in order to advance a

   joint-defense undertaking.

6. Both WEST and EAST believe that their common interest includes, but is not limited to,

   providing a coordinated and united defense against the Lawsuit, minimizing the possibility of

   misrecollection, and minimizing the cost of legal representation and expert representation,

   while preserving all protections afforded by the attorney-client privilege, the work-product

   privilege, and the joint defense privilege.

7. Both WEST and EAST consider that disclosures of matters of common concern in regard to

   this Agreement are essential to the effective representation of WEST and EAST on these

   matters of separate but common interests and for the advancement of a joint defense

   undertaking.

8. Both WEST and EAST understand and acknowledge that the declaration of a common

   interest between them, as evidenced by this Agreement, does not in any way constitute an

   agency, ratification, joint venture, conspiracy, or other expressed or implied relationship

   between WEST and EAST.

9. The existence of the Agreement or of this joint defense effort shall not be deemed or used as

   an admission or other evidence of WEST and/or EAST’s liability with respect to the Lawsuit

   or any other claims relating to the Project.

NOW, THEREFORE, in consideration of the premises and the mutual agreements and

covenants contained herein, the PARTIES agree and covenant as follows:
                              EXAMPLE 1 - Two Defendants Represented by the Same Attorney


                                  Covenants and Agreements

                                      Joint Representation

10. The above recitals are true and correct and incorporated herein.

11. Both WEST and EAST agree to be represented in the Lawsuit by SMITH and hereby waive

   any potential conflict of interest that may arise from this joint representation and furthermore

   acknowledge that they have been fully apprised of the potential advantages and risks of joint

   representation. In the event that this Agreement is terminated, SMITH reserves the right to

   represent WEST in the Lawsuit provided that WEST and EAST’s interests are not materially

   adverse, in which case Paragraph 22 will govern and SMITH will not represent either

   PARTY.

                                          Joint Defense

12. The above recitals are true and correct and incorporated here.

13. WEST and EAST shall jointly control the defense of the Lawsuit. In the event that WEST

   and EAST differ with regards to any decisions relating to defense of the Lawsuit, the

   disagreement shall be resolved by Mick C. Haller of SMITH, who shall follow the course of

   action which, in his reasonable professional judgment, is in WEST’s and EAST’s joint best

   interests. If the disagreement results in a deadlock causing the termination of the Agreement,

   SMITH may continue to represent WEST in the Lawsuit provided that WEST and EAST’s

   interests are not materially adverse, in which case Paragraph 22 will govern and SMITH will

   not represent either PARTY.

14. Legal fees and expenses incurred in defense of the Lawsuit shall be divided as follows: any

   services performed or costs incurred for the sole benefit of one of the PARTIES shall be

   billed solely to that PARTY; and any fees or services performed or costs incurred that are
                             EXAMPLE 1 - Two Defendants Represented by the Same Attorney


   for the benefit for both WEST and EAST shall be billed fifty percent (50%) to each of them.

   This determination shall be made in SMITH’s reasonable discretion, subject to the right of

   WEST or EAST to challenge the decision pursuant to Paragraph 22 below.

15. All information in any form, including client, witness, and other statements and interviews,

   research or legal memoranda, debriefing memoranda, factual summaries, transcripts,

   documents, digests of testimony, computer-generated information, spreadsheets, notes,

   drafts, opinions, information provided to experts, communications between experts, work

   product of experts, and other such tangible materials, oral communications, and information

   that otherwise would be protected from disclosure to a third party and which has, would have

   been, or will be exchanged between WEST and EAST in connection with the Lawsuit shall

   constitute “Joint Defense Information.” Such Joint Defense Information will remain

   confidential and protected from disclosure to any third party by the attorney-client privilege,

   attorney work product doctrine, and by the joint defense and common interest doctrines.

16. All Joint Defense Information shall be marked as “PRIVILEGED AND CONFIDENTIAL

   JOINT DEFENSE INFORMATION” and shall be treated as if protected by the attorney-

   client privilege, the attorney work product doctrine, and/or any other applicable privilege or

   doctrine. All persons permitted to access Joint Defense Information shall be advised of the

   terms of this Agreement and of their obligation to abide by its terms. Any employee or agent

   of WEST, EAST, and SMITH who has access to Joint Defense Information shall be subject

   to all the obligations of this Agreement. The failure to mark such information

   “PRIVILEGED AND CONFIDENTIAL JOINT DEFENSE INFORMATION” shall not

   operate as a waiver or otherwise affect the provisions of this Agreement.
                             EXAMPLE 1 - Two Defendants Represented by the Same Attorney


17. Any exchanges of information in connection with joint defense efforts are not intended to

   waive the attorney-client or the attorney work-product privileges, nor any other privilege

   which is otherwise available. The PARTIES to this Agreement consider that such exchange

   of information regarding matters of common interest is essential to the effective

   representation of WEST and EAST. Therefore, all work performed by SMITH pursuant to

   this Agreement and all communications between and among WEST, EAST, and their

   representatives in connection with the Lawsuit shall be confidential and protected pursuant to

   the joint defense privilege. All Joint Defense Information is confidential and will remain

   confidential and protected from disclosure to any non-parties to this Agreement. None of the

   information obtained by any PARTY to this Agreement as a result of this Agreement shall be

   disclosed to any person or entity other than the PARTIES to this Agreement without first

   obtaining the expressed consent of the other PARTIES to this Agreement unless required to

   do so by court order.

18. The PARTIES acknowledge and agree that no adequate remedy is available at law for breach

   of this Agreement’s privilege and confidentiality covenant, and that in the event of a breach

   or threatened breach, the PARTIES agree that injunctive relief is appropriate and hereby

   knowingly and voluntarily waive that an adequate remedy of law exists or that irreparable

   injury likely will not result from disclosure. The PARTIES further assent that for the

   purposes of this Paragraph, a presumption of privilege exists for any information exchanged

   between or among them. As such, any papers submitted to a court by the PARTIES that

   contain or reference the substance of Joint Defense Information will be filed under seal.

19. WEST and EAST may withdraw from this Agreement at any time by giving written notice to

   the other. Upon withdrawal, this Agreement shall continue to govern and protect all Joint
                              EXAMPLE 1 - Two Defendants Represented by the Same Attorney


   Defense Information previously disclosed to the other PARTY. A PARTY’s withdrawal

   from this Agreement shall not affect the duty of confidentiality which that PARTY has

   undertaken by virtue of having entered into this Agreement, and such PARTY shall remain

   obligated to preserve the privileges and confidentiality of all information exchanged pursuant

   to this Agreement. The withdrawing PARTY shall not directly use or make derivative use

   of any Joint Defense Information except to the extent that such information was: supplied by

   the withdrawing PARTY and created without using any Joint Defense Information supplied

   by the other PARTY to the Agreement.

20. Furthermore, the obligations to preserve and protect Joint Defense Information as set forth in

   this Agreement shall survive the Agreement’s termination, regardless of the reason for

   termination, and shall remain in full force and effect, whether the interests of the PARTIES

   to this Agreement are subsequently aligned or adverse.

21. WEST and EAST shall cooperate fully with each other and with SMITH in all matters

   relating to defense of the Lawsuit. In the event of a settlement with the Claimant, WEST and

   EAST shall confer and cooperate closely with each other and with SMITH to determine the

   amount of the settlement and the allocation between them. If WEST and EAST are unable to

   agree on the allocation between them of any settlement or other sums, then either PARTY

   can seek relief via Paragraph 22, below.

22. WEST and EAST each agrees not to file or otherwise assert any claims against the other

   arising out of or pertaining to the Projects or the Lawsuit until all of the issues in the Lawsuit

   applicable to WEST and/or EAST are finally resolved. After such final resolution, if either

   WEST or EAST desires to make a claim against the other arising out of or pertaining to the

   Projects or the Lawsuit, all such claims and disputes shall be resolved by binding arbitration
                              EXAMPLE 1 - Two Defendants Represented by the Same Attorney


   utilizing the fast-track Construction Industry Rules of the American Arbitration Association

   with Josh Lyman as the sole arbitrator. SMITH shall not represent either WEST or EAST in

   any such arbitration hearing but may be a witness in such hearing. The applicable statute of

   limitations shall be tolled as of the date of this Agreement on any claims between WEST and

   EAST arising out of or pertaining to the Projects or the Lawsuit.

23. This Agreement shall be enforceable to the fullest extent permitted by law. In the event that

   any provision of the Agreement shall be determined to be illegal, void, or unenforceable by

   any court of competent jurisdiction, such provision shall have no force or effect, but the

   illegality or unenforceability of such provision shall neither affect nor impair the

   enforceability of any other provision of the Agreement.

24. The Agreement may only be modified, altered, or amended, by an instrument in writing

   signed by the PARTIES to be bound by such modification or amendment.

25. This Agreement shall be governed and construed in accordance with the laws of the State of

   Rhode Island.

26. WEST and EAST acknowledge and agree that, prior to entering into this Agreement, they

   have had an opportunity to seek the advice of independent counsel (not SMITH) regarding

   the propriety of entering into this Agreement. This Agreement shall be interpreted in

   accordance with the laws of the State of Rhode Island.

27. This Agreement may be executed in counterparts, each of which shall be deemed to be an

   original, and all of which shall constitute one and the same Agreement.
                             EXAMPLE 1 - Two Defendants Represented by the Same Attorney


IN WITNESS WHEREOF, the PARTIES hereto caused this instrument to be executed as of
the day and year first written above.


WEST ARCHITECTS, INC.                         EAST DESIGN ASSOCIATES, INC.

By:                                           By:

      Phillip Lassiter, President                    Jack Campbell, President

SMITH JONES LLP

By:

      Mick C. Haller, Partner
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys



      JOINT DEFENSE, PRIVILEGE, AND CONFIDENTIALITY AGREEMENT

       This JOINT DEFENSE, PRIVILEGE, AND CONFIDENTIALITY AGREEMENT (the

“Agreement”) by and between the undersigned counsel, acting for and on behalf of their

respective clients is entered into by ARCHITECT, ENGINEER, and MANUFACTURER

(collectively, the “PARTIES”) on this ____ day of January, 2011, which memorializes the

agreements and understandings previously reached with respect to ARCHITECT, ENGINEER,

and MANUFACTURER’s common interest relative to their joint defense.

                                             Recitals

1. Gated Community, Inc. (the “Owner”) has acted as the owner of a project known as the

   Construction of the Concrete Jungle (the “Project”).

2. Beginning on or about December 25, 2004, ARCHITECT entered into an agreement with the

   Owner to provide design services in connection with the Project.

3. As of June 19, 2005, ARCHITECT entered into an agreement with ENGINEER to provide

   certain engineering services for the Project.

4. As of July 4, 2005, ENGINEER entered into an agreement with MANUFACTURER to

   provide certain gutter materials for the Project.

5. On or about November 2007, the PARTIES discovered certain issues with respect to the

   construction of the Project’s building gutter and have been notified that the Owner and/or its

   contractors may assert a claim against ARCHITECT and/or ENGINEER and/or

   MANUFACTURER alleging certain design errors, omissions, and/or product defects (the

   “Building Gutter Claim”).

6. The PARTIES acknowledge that they have been operating under a common interest

   agreement and now wish to memorialize that arrangement in this Agreement. The provisions
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


   of this Agreement shall apply not only to common-interest “Joint Defense Information” (as

   defined in Paragraph 19, infra) shared after the date of this Agreement, but also to common-

   interest “Joint Defense Information” shared prior to the date of this Agreement.

7. The PARTIES believe that it is in their best interest to share information and resources in

   defense of any allegations raised in the Building Gutter Claim and to use privileged attorney-

   client communications and privileged attorney work-product as part of a joint-defense effort

   in order to advance a joint-defense undertaking.

8. The PARTIES believe that their common interest includes, but is not limited to, providing a

   coordinated and united defense against the Building Gutter Claim, minimizing the possibility

   of misrecollection, and minimizing the cost of legal representation and expert representation,

   while preserving all protections afforded by the attorney-client privilege, the work-product

   privilege, and the joint defense privilege.

9. The PARTIES consider that disclosures of matters of common concern in regard to this

   Agreement are essential to the effective representation of the PARTIES on these matters of

   separate but common interests and for the advancement of a joint defense undertaking.

10. The PARTIES understand and acknowledge that the declaration of a common interest among

   them, as evidenced by this Agreement, does not in any way constitute an agency, ratification,

   joint venture, conspiracy or other expressed or implied relationship between the PARTIES.

11. The existence of the Agreement or of this joint defense effort shall not be deemed or used as

   an admission or other evidence of any PARTY’s liability with respect to the Building Gutter

   Claim or any other claims relating to the Project.

NOW, THEREFORE, in consideration of the premises and the mutual agreements and

covenants contained herein, the PARTIES agree and covenant as follows:
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


                                  Covenants and Agreements

                                          Joint Defense

12. The above recitals are true and correct and incorporated herein.

13. The PARTIES agree to work cooperatively with one another and use their best efforts in

   defending against the Building Gutter Claim by providing reasonable access to their

   respective Project documents and their expert witnesses, by coordinating their efforts with

   one another, and by making their representatives available to candidly assess, discuss and aid

   in the defense of the Building Gutter Claim. When counsel for any of the PARTIES wishes

   to communicate with a representative of the other, counsel for such PARTY shall provide

   reasonable notice to counsel for the other and no such communication shall take place unless

   counsel for the other is present or if counsel and any said PARTY expressly waives the right

   to have counsel present for such communication.

14. Each PARTY shall continue to be represented by its respective attorneys, Cratchit &

   Cratchit, LLP for ARCHITECT, Marley & Associates, LLC for ENGINEER, and Dashing,

   Snow & Snow, PC for MANUFACTURER.

15. The PARTIES have selected ENGINEER’s counsel, Marley & Associates, LLC, as “Lead

   Counsel” to defend the Building Gutter Claim on behalf of the PARTIES. The PARTIES

   shall jointly control the defense of the Building Gutter Claim and shall cooperate fully with

   each other and Lead Counsel in all matters relating to the defense of the Building Gutter

   Claim.

16. In the event that the PARTIES differ with regards to any decisions relating to the defense of

   the Building Gutter Claim, the disagreement shall be resolved by a majority of the Joint

   Defense Decision Committee (the “Committee”). The Committee shall be comprised of five
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


   PARTY representatives, two (2) representatives from ENGINEER, two (2) representatives

   from ARCHITECT, and one (1) representative from MANUFACTURER. Each PARTY

   shall select its own representative(s). The Committee shall follow the course of action that, in

   its reasonable judgment, is in all PARTIES joint best interests. If a dispute persists after

   decision by the Committee, the PARTY or PARTIES may seek relief via Paragraph 32.

17. In the event of a settlement amount is reached with Owner, the PARTIES shall confer and

   cooperate closely with each other and with Lead Counsel, to determine the allocation among

   them. If the PARTIES are unable to agree on the allocation of any settlement or other sums,

   then a majority of the Committee will resolve the disagreement. If the settlement dispute

   persists after a decision is made by the Committee, the PARTY or PARTIES may seek relief

   via Paragraph 35.

18. Each PARTY shall be responsible for paying its own legal fees, expenses, expert and other

   related fees, costs and expenses required for the defense against the Building Gutter Claim

   unless otherwise agreed to between the PARTIES. Each PARTY shall, to the extent

   appropriate, retain experts or other consultants to opine regarding allegations relating to such

   PARTY’s alleged acts or omissions.

19. Each PARTY agrees that all Joint Defense Information exchanged in connection with the

   joint defense efforts in this case will be communicated in confidence for the common

   purpose of securing legal advice and representation, and is therefore subject to: (i) the terms

   of this Agreement and (ii) the attorney work-product, the attorney-client, or any other

   applicable privileges pertaining to such communications and information.

20. The PARTIES agree that all information in any form, including client, witness, and other

   statements and interviews, research or legal memoranda, debriefing memoranda, factual
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


   summaries, transcripts, documents, digests of testimony, computer-generated information,

   spreadsheets, notes, drafts, opinions, settlement discussions, information provided to experts,

   communications between experts, work product of experts, and other such tangible materials,

   oral communications, and information that otherwise would be protected from disclosure to a

   third party and which has, would have been, or will be exchanged between the PARTIES in

   connection with the Building Gutter Claim shall constitute “Joint Defense Information.”

   Such information will remain confidential and protected from disclosure to any third party by

   the PARTIES’ attorney-client privilege or attorney-work-product privilege, pursuant to the

   joint defense privilege under the laws of the State of Rhode Island.

21. The PARTIES agree that any written material exchanged among counsel in support of the

   common interest and joint defense should be clearly marked on each page with the statement:

   “PRIVILEGED AND CONFIDENTIAL JOINT DEFENSE INFORMATION.”

22. Pursuant to this Agreement, the PARTIES may exchange with each other all factual

   information in their possession or of which they have knowledge and opinions of any experts

   retained by any PARTY relevant to the Building Gutter Claim. Such information includes,

   but is not limited to, documents obtained through discovery or otherwise, factual statements

   of the PARTIES, factual analysis of the PARTIES, expert witness analysis, expert witnesses’

   opinions and witness statements. However, nothing in this Agreement shall be deemed to

   compel disclosure of documents or other information that is otherwise protected from

   disclosure.

23. Furthermore, the PARTIES, and their agents and representatives shall retain the right to

   determine what if any information in its possession, custody, or control it shall disclose to the

   other PARTIES to this Agreement. It is expressly understood, however, that nothing
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


   contained in this Agreement shall limit the right of any PARTY to disclose to third parties its

   own documents or information whether or not documents or information were exchanged

   pursuant to this Agreement.

24. To ensure the continued confidentiality of Joint Defense Information and to preserve the

   work-product, attorney-client, joint defense and any other applicable privileges pertaining to

   each PARTY, each PARTY agrees not to, without the prior written consent of the other

   PARTIES, give, show, make available, or communicate in any way any Joint Defense

   Information to anyone other than the following authorized persons: (i) the attorneys of the

   PARTIES herein, and their respective associate attorneys, paralegals, and regularly

   employed, necessary office staff involved in the defense of the Building Gutter Claim; (ii)

   insurance carriers of any PARTY to the extent required under any contract of insurance

   pursuant to which the PARTY seeks defense and/or indemnification for litigation expenses,

   settlements or judgments; (iii) experts and consultants retained by counsel for the PARTIES,

   subject to the written approval of the other PARTY; and (iv) representatives of the PARTIES

   unless otherwise required by law. The foregoing limitation shall not apply, after the

   termination of this Agreement, to any information of the type referred to in the exception at

   the end of Paragraphs 22 and 23.

25. Except to the extent permitted by Paragraph 24 above or otherwise permitted by this

   Agreement, neither the PARTIES nor their counsel shall disclose any Joint Defense

   Information obtained pursuant to this Agreement without the prior written consent of all

   PARTIES, unless otherwise required by law.
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


26. The PARTIES, their insurers and the undersigned counsel agree that the provisions contained

   in this Agreement relative to the protection of the Joint Defense Information shall be

   applicable to the persons listed in Paragraph 24 and their respective employees and agents.

27. The PARTIES, their insurers, and the undersigned counsel agree that the communications

   among counsel, as well as joint interviews of prospective witnesses in connection with the

   defense of the Building Gutter Claim are confidential, and are protected from disclosure to

   any third party by the PARTIES’ attorney-client privilege and attorney-work-product

   privilege, as well as the joint defense privilege. The PARTIES agree that these confidential

   communications among the PARTIES and the persons listed in Paragraph 24 shall not be

   deemed a waiver of the joint defense privilege, the attorney-client privilege, the attorney

   work-product privilege, or any other applicable privilege.

28. If a PARTY exchanges privileged information in their possession and follows the procedures

   set forth in this Agreement, then such information shall receive the protection afforded by

   this Agreement.

29. The PARTIES, their insurers and their counsel agree that the communication of Joint

   Defense Information among the persons listed in Paragraph 24 and their respective

   employees and agents shall not be deemed a waiver of the joint defense privilege, the

   attorney-client privilege or the attorney work-product privilege. Each PARTY agrees that

   any Joint Defense Information obtained in connection with this Agreement from any other

   PARTY to this Agreement or its counsel shall not be admissible for any purpose in any

   subsequent litigation, arbitration, or other proceeding, except for any information which

   either PARTY would have obtained in subsequent discovery proceedings without the benefit

   of this Agreement.
              EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


30. The PARTIES acknowledge and agree that no adequate remedy is available at law for breach

   of this Agreement’s privilege and confidentiality covenant, and that in the event of a breach

   or threatened breach, the PARTIES agree that injunctive relief is appropriate and hereby

   knowingly and voluntarily waive that an adequate remedy of law exists or that irreparable

   injury likely will not result from disclosure. The PARTIES further assent that for the

   purposes of this paragraph, a presumption of privilege exists for any information exchanged

   between or among them. As such, any papers submitted to a court by the PARTIES that

   contain or reference the substance of Joint Defense Information will be filed under seal.

31. The obligations to preserve and protect Joint Defense Information as set forth in this

   Agreement shall survive the Agreement’s termination and shall remain in full force and

   effect, regardless of whether the interests of the PARTIES to this Agreement are

   subsequently aligned or adverse.

32. Each PARTY may, by written notice to all other PARTIES, withdraw prospectively from this

   Agreement by giving seven (7) days advance notice of its intent to withdraw. The

   withdrawing PARTY may utilize any information, documents or materials exchanged under

   this Agreement, except that a PARTY’s withdrawal from this Agreement shall not affect the

   duty of confidentiality which that PARTY and its counsel have undertaken by virtue of

   having entered into this Agreement, and such PARTY and its counsel shall remain obligated

   to preserve the privileges and confidentiality of all information exchanged pursuant to this

   Agreement.

33. If any other person or entity not a party to this Agreement requests or demands, by subpoena

   or otherwise, any Joint Defense Information received from another PARTY or its counsel, or

   jointly obtained by any one counsel on behalf of other counsel, counsel will immediately
             EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


   notify the PARTIES through their counsel giving as much notice as possible in order to

   provide counsel with ample opportunity to seek injunctive or other relief against such

   request. Each PARTY shall cooperate fully with the others in any proceeding relating to the

   disclosure of Joint Defense Information.

34. The PARTIES agree that their cooperative efforts pursuant to this Agreement shall not be

   deemed a waiver of any defenses or claims between either of the PARTIES except to the

   extent and limit as specifically provided for in this Agreement.

35. The PARTIES each agree not to file or otherwise assert any claims against any other PARTY

   arising out of or pertaining to the Project or the Building Gutter Claim until all of the issues

   in the Building Gutter Claim applicable to ARCHITECT and/or ENGINEER and/or

   MANUFACTURER are finally resolved. After such final resolution, if the ARCHITECT

   and/or ENGINEER and/or MANUFACTURER desires to make a claim against any other

   PARTY arising out of or pertaining to the Project or the Building Gutter Claim, all such

   claims and disputes shall be resolved by binding arbitration utilizing the fast-track

   Construction Industry Rules of the American Arbitration Association with George Bluth as

   the sole arbitrator. The applicable statute of limitations shall be tolled as of the date of this

   Agreement on any claims between or among ARCHITECT and/or ENGINEER and/or

   MANUFACTURER arising out of or pertaining to the Project or the Building Gutter Claim.

36. Should the interest of any PARTY to this Agreement materially diverge from the common

   interest, that PARTY promptly shall withdraw pursuant to Paragraph 31. Absent compliance

   with the terms of Paragraph 31, where the interest of any PARTY to this Agreement

   materially diverges from the common interest, any PARTY to this Agreement may terminate
              EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


   the noncompliant PARTY from this Agreement, provided that the noncompliant PARTY is

   given a seven (7) day, written notice of its termination.

37. Nothing contained herein shall be deemed to create an attorney-client relationship between

   any attorney and anyone other that the client(s) of that attorney and the fact that any attorney

   has entered this Agreement shall not in any way preclude that attorney from representing any

   interest that may be construed to be adverse to any other PARTY to this Agreement or be

   used as a basis for seeking to disqualify any counsel from representing any other PARTY in

   any action or proceeding, and no attorney who has entered into this Agreement shall be

   disqualified from examining or cross-examining any PARTY who testifies at any proceeding

   because of such attorney’s participation in this Agreement; and it is herein represented that

   each undersigned counsel to this Agreement has specifically advised his or her respective

   client of this clause.

38. This Agreement shall be enforceable to the fullest extent permitted by law. In the event that

   any provision of the Agreement shall be determined to be illegal, void, or unenforceable by

   any court of competent jurisdiction, such provision shall have no force or effect, but the

   illegality or unenforceability of such provision shall neither affect nor impair the

   enforceability of any other provision of the Agreement.

39. The Agreement may only be modified, altered, or amended, by an instrument in writing

   signed by the PARTIES to be bound by such modification or amendment.

40. This Agreement shall be governed and construed in accordance with the laws of the State of

   Massachusetts, exclusive of its provisions regarding conflict of laws.

41. By executing this Agreement all PARTIES acknowledge that the advantages and

   disadvantages of this Agreement have been discussed, and that while conflict of interest
                EXAMPLE 2 – Three Potentially Liable Parties Represented by Separate Attorneys


      issues may arise by virtue of this Agreement, each PARTY has chosen to enter into this

      Agreement despite the potential conflict risk, with the full approval of their respective

      clients, and each undersigned agrees to be bound and abide by the understanding reflected

      herein.

42. This Agreement may be executed in counterparts, each of which shall be deemed to be an

      original, and all of which shall constitute one and the same Agreement.

IN WITNESS WHEREOF, the PARTIES hereto caused this instrument to be executed as of

the day and year first written above.


ARCHITECT                                            ENGINEER

By:                                                  By:
         Toby Ziegler, President                             C.J. Craig, President

CRATCHIT & CRATCHIT, LLP                             MARLEY & ASSOCIATES, LLC

By:                                                  By:
         Mick C. Haller, Partner                             Sam Seaborne, Partner



MANUFACTURER

By:
        Walter Hobbs, Chief Executive Officer

DASHING, SNOW & SNOW, PC

By:
         Griswold Clark, Partner
                     EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


                          JOINT PROSECUTION AGREEMENT
                            and LIQUIDATING AGREEMENT

       This JOINT PROSECUTION, PRIVILEGE, AND CONFIDENTIALITY AGREEMENT

(the “Agreement”) by and between the undersigned counsel, acting for and on behalf of their

respective clients is entered into by CONSTRUCTION Co. (“CONSTRUCTION”) and

EXCAVATOR Co. (“EXCAVATOR”) (collectively, PARTIES) on this ____ day of December,

2011, which memorializes the agreements and understandings previously reached with respect to

CONSTRUCTION and EXCAVATOR’s common interest relative to their joint prosecution and

liquidating agreement.

                                              Recitals

   1. On or about April 1, 2009, CONSTRUCTION entered into a Contract with the Carnival

       BigTop Group (“CBG”), Contract No. 1234 (“Contract”) to perform certain work on the

       Water for Hyenas (the “Project”).

   2. On or about August 12, 2010, CONSTRUCTION and EXCAVATOR entered into a

       Subcontract Agreement pursuant to which EXCAVATOR agreed to furnish labor,

       materials and equipment to excavate the hyena habitat for the Project.

   3. During the course of the Project, CONSTRUCTION and EXCAVATOR encountered

       differing site conditions and changed conditions that caused them to incur additional

       costs and time to complete the work.

   4. CONSTRUCTION and EXCAVATOR have concluded that CBG is ultimately

       responsible for the additional costs arising from the differing site conditions and changed

       conditions encountered on the Project.

   5. Certain provisions in the subcontract between CONSTRUCTION and EXCAVATOR

       allow EXCAVATOR to make a claim for extra payment, extension of time and/or
                    EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


   additional costs including equitable adjustment in the same manner provided in the

   Contract between CONSTRUCTION and CBG for CONSTRUCTION to make claims

   upon CBG.

6. CONSTRUCTION’s contract with CBG provides for an equitable adjustment in the

   Contract price and time occasioned by the performance of work beyond that required by

   the original contract, including extra work, changes, differing site conditions and changes

   in quantities.

7. CONSTRUCTION and EXCAVATOR have orally agreed in principle that

   EXCAVATOR would submit its claim arising from the differing site and changed

   conditions to CONSTRUCTION, that CONSTRUCTION would submit a claim to CBG

   that encompassed EXCAVATOR’s claim against CONSTRUCTION,

   CONSTRUCTION’s independent costs, and CONSTRUCTION’s permissible mark-ups,

   and that EXCAVATOR and CONSTRUCTION would cooperate in the joint prosecution

   of the claim against CBG.

8. EXCAVATOR has submitted a claim to CONSTRUCTION in the amount of $1,000,000

   (the “EXCAVATOR Claim”) for EXCAVATOR’s costs arising from the differing site

   conditions and changed conditions.

9. CONSTRUCTION submitted a claim to CBG arising from the differing site conditions

   and changed conditions, but CBG has not finally acted thereon.

10. CONSTRUCTION intends to re-activate its claim in the amount of $1,500,000 (the

   “CONSTRUCTION Claim”), to consist of the amount of the EXCAVATOR Claim and

   the amount of CONSTRUCTION’s independent costs ($500,000).
                     EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


   11. Insurance Company (“Insurer”) issued a builder’s risk policy insuring the interest of

      CONSTRUCTION, EXCAVATOR and others in the Project, and CONSTRUCTION has

      submitted a claim to Insurer for both the CONSTRUCTION Claim and the

      EXCAVATOR claim, which Insurer has denied.

   12. CONSTRUCTION has filed a lawsuit against Insurer in the Superior Court for Middlesex

      County, Massachusetts for CONSTRUCTION’s loss on the Project, Construction

      Company v. Insurance Company, C.A. No. 2005-1234 (the “Insurer Lawsuit”).

   13. CONSTRUCTION and EXCAVATOR have a common interest in prosecuting the

      CONSTRUCTION Claim, the EXCAVATOR Claim and the Insurer Lawsuit (jointly,

      “the Claims”) and to avoid litigation among themselves.

   14. Both CONSTRUCTION and EXCAVATOR acknowledge that they have been operating

      under a common interest agreement and now wish to memorialize that arrangement in

      this Agreement to resolve and liquidate CONSTRUCTION’s liability to EXCAVATOR

      with respect to the EXCAVATOR Claim, and to provide a basis for the cooperative

      prosecution of the Claims. The provisions of this Agreement shall apply not only to

      common-interest “Joint Prosecution Information” (as defined in Paragraph 25, infra)

      shared after the date of this Agreement, but also to common-interest “Joint Prosecution

      Information” shared prior to the date of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants contained herein,

CONSTRUCTION and EXCAVATOR agree as follows:

                                 Covenants and Agreements

   15. Incorporation of Recitals. The foregoing recitals are hereby agreed to and incorporated

      herein.
                 EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


16. Term. This Agreement memorializes CONSTRUCTION and EXCAVATOR’s previous

   oral agreement and shall continue in effect until the Claims shall have been finally

   resolved and distribution of any recovery or recoveries shall have been made to the

   PARTIES.

17. Payment of Contract Balance. Within 7 days following the execution of this

   Agreement by both PARTIES, CONSTRUCTION shall pay EXCAVATOR the sum of

   $300,000 representing the unpaid balance of EXCAVATOR’s Subcontract. Payment of

   said sum shall fully release and discharge any liability CONSTRUCTION has or may

   have to EXCAVATOR for the original subcontract price.

18. EXCAVATOR’s Additional Costs. EXCAVATOR represents to CONSTRUCTION

   that EXCAVATOR incurred additional costs, over and above the Subcontract price, to

   complete EXCAVATOR’s work, on account of differing site conditions and changed

   conditions encountered by EXCAVATOR, and that such additional costs total

   $1,000,000. In reliance upon EXCAVATOR’s representation, CONSTRUCTION

   acknowledges that the said sum was so incurred by EXCAVATOR and is accurate.

19. CONSTRUCTION’s Additional Costs. CONSTRUCTION represents to

   EXCAVATOR that CONSTRUCTION incurred additional costs, over and above its

   Contract price, to complete CONSTRUCTION’s work, on account of differing site

   conditions and changed conditions encountered by CONSTRUCTION, and that such

   additional costs total $500,000. In reliance upon CONSTRUCTION’s representation,

   EXCAVATOR acknowledges the said sum was so incurred by CONSTRUCTION and is

   accurate.
                  EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


20. Joint Prosecution of Claims. CONSTRUCTION and EXCAVATOR shall cooperate in

   the joint prosecution of the Claims. CONSTRUCTION and EXCAVATOR do not

   otherwise specify herein the details of such joint prosecution, but affirm their intent to

   work cooperatively in good faith to prosecute such the Claims.

21. Liquidation of CONSTRUCTION’s Liability to EXCAVATOR. CONSTRUCTION’s

   liability to EXCAVATOR with respect to the EXCAVATOR Claim is hereby

   acknowledged and liquidated to an amount equal to the amount, if any, distributable to

   EXCAVATOR pursuant to Paragraph 22 hereof. Payment of such liability shall be

   subject to an express condition precedent of an actual recovery from CBG or Insurer or

   both, and such liability shall be limited by the amount distributable to EXCAVATOR

   under this Agreement. CONSTRUCTION shall be obligated to pay the EXCAVATOR

   Claim only as, when, and to the extent CONSTRUCTION receives payment from CBG

   or Insurer. Other that as set forth in the Agreement, neither CONSTRUCTION nor

   EXCAVATOR shall have any further liability or indebtedness to the other on account of

   the CONSTRUCTION Claim or the EXCAVATOR Claim.

22. Distribution of Recoveries. Any financial recovery from either CBG or Insurer

   resulting from the joint prosecution of the Claims described above shall be deposited

   within 7 days into the client funds account of CONSTRUCTION’s attorneys. Within 14

   additional days of the deposited funds, the financial recovery shall be distributed to the

   PARTIES as follows, regardless of whether the recovery is realized from CBG or Insurer:

       a. First, a sum equal to the PARTIES’ combined attorneys’ fees and expenses shall

          be disbursed to CONSTRUCTION and EXCAVATOR subject to the provisions

          of Paragraph 23 hereof;
                       EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


           b. The next $100,000 of any recovery shall be distributed to CONSTRUCTION;

           c. The next $150,000 of any recovery shall be distributed to EXCAVATOR;

           d. Any further recovery shall be distributed 60% to CONSTRUCTION and 40% to

               EXCAVATOR.

In the event the PARTIES obtain a partial recovery and elect to continue to pursue CBG or

Insurer for an additional recovery, thereby incurring additional attorneys’ fees and expenses,

such additional attorneys’ fees and expenses shall be reimbursed in the same manner as provided

in Paragraph 22.a.

   23. Attorneys Fees and Expenses. During the term of this Agreement, CONSTRUCTION

       and EXCAVATOR shall be represented by their own, separate legal counsel.

       CONSTRUCTION’s legal counsel shall not be deemed to represent EXCAVATOR, and

       EXCAVATOR’s legal counsel shall not be deemed to represent CONSTRUCTION.

       During the joint prosecution of the Claims, CONSTRUCTION and EXCAVATOR shall

       each bear their own attorneys fees. Expenses jointly incurred, if any, such as filing fees,

       expert consultants, expert witnesses, investigators, arbitrator fees, document coding and

       database development, and other similar costs as may be appropriately shared, shall be

       paid 50% by CONSTRUCTION and 50% by EXCAVATOR. Any other expenses not

       jointly incurred shall be paid by the PARTY incurring them. During the joint prosecution

       of the Claims, CONSTRUCTION and EXCAVATOR shall provide to each other’s

       attorneys monthly copies of invoices for attorneys fees and other expenses incurred.

       Descriptions of services rendered may be redacted, if privileged or otherwise

       confidential.
                 EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


24. Final Allocation of Attorneys Fees and Expenses. Any distribution to

   CONSTRUCTION and EXCAVATOR shall be adjusted so that each PARTY shall have

   borne 50% of the total attorneys fees and expenses incurred from the date of this

   Agreement to the date of such distribution. If no recovery is realized from the joint

   prosecution of the Claims, or if the recovery is inadequate to reimburse the PARTIES for

   all attorneys’ fees and expenses incurred, then the PARTY which has born less that 50%

   of the attorneys’ fees and expenses shall reimburse the other PARTY so that each shall

   have born an equal share.

25. Joint Prosecution Privilege. CONSTRUCTION and EXCAVATOR affirm that the

   joint effort to be undertaken by them pursuant to this Agreement, by virtue of its purpose,

   operation and use, is attorney work product. During the term of this Agreement,

   CONSTRUCTION and EXCAVATOR may (but are not obligated to ) share ideas,

   litigation strategies, legal research, legal analysis, correspondence, deposition summaries,

   trial materials, drafts of documents and consultant reports, including both oral and written

   information and work product (“Confidential Information”) in support of their common

   interests. All Confidential Information which CONSTRUCTION and EXCAVATOR

   may receive from each other in connection with the joint prosecution of the Claims, and

   all additional information, documents, or materials directly or indirectly derived

   therefrom, shall be maintained by each PARTY as confidential and shall not be disclosed

   to any one other that the PARTIES, their attorneys, attorneys’ staff, and independent

   consultants retained for litigation purposes. Both CONSTRUCTION and EXCAVATOR

   shall treat such Confidential Information as being subject to all applicable privileges

   (including work product privilege and attorney-client privilege) that the Confidential
                  EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


   Information enjoyed before it was shared. The PARTIES intend to preserve, and not to

   waive, such privileges. Each PARTY shall undertake active measures to preserve the

   privileged nature of Confidential Information that may be shared pursuant to this

   Agreement. It is intended that this provision shall invoke the joint-litigation privilege.

   Each PARTY reserves the right not to share Confidential Information with the other

   PARTY as each PARTY, in its sole discretion, may decide.

26. Cooperation. The PARTIES shall cooperate in the performance of any and all

   additional acts reasonably necessary to fully effectuate the intent of this Agreement, or

   otherwise enforce it, including, but not limited to, filing and prosecuting any necessary or

   proper motions to protect shared Confidential Information from disclosure.

27. Termination for Cause. This Agreement may be terminated by either PARTY for

   cause, i.e. for a material breach by the other PARTY. A material breach includes, but is

   not limited to, a material misrepresentation (whether or not intentional) of the sums set

   forth in Paragraphs 18 and 19 of this Agreement, or a material failure to diligently

   cooperate in the joint prosecution of the Claims, or an intentional disclosure of

   Confidential Information. In the event of the termination of this Agreement for cause, the

   PARTIES shall continue to hold in confidence all Confidential Information shared prior

   to the termination of this Agreement. Termination may be accomplished by serving

   written notice as hereafter provided.

28. Covenant Not To Sue. Subject to the right of either PARTY to terminate this

   Agreement for cause, CONSTRUCTION and EXCAVATOR hereby covenant not to sue

   or demand arbitration against each other, except as may be necessary to prosecute the

   Claims as contemplated by this Agreement, and further covenant not to execute upon or
                  EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


   otherwise seek to enforce any judgment that either of them may obtain against the other

   as a result of the joint prosecution of the Claims. Further, other than to enforce the

   provisions of this Agreement, EXCAVATOR covenants not to make a claim upon

   CONSTRUCTION’s labor and material payment bond for the Project or sue the surety.

29. Merger and Amendments. This Agreement constitutes the full and complete agreement

   between CONSTRUCTION and EXCAVATOR with respect to the claims and

   supersedes and prior oral or written agreements between the PARTIES concerning the

   claims. To the extent anything in the Subcontract is inconsistent with this Agreement,

   this Agreement shall control. Any modification of this Agreement shall be in writing,

   and shall be signed by both PARTIES, and shall make express reference to this

   Agreement.

30. Successor and Assigns. This Agreement shall inure only to the benefit of the PARTIES

   and their successor and assigns. No third party is intended to benefit from this

   Agreement.

31. Authority of Signatories. Each person signing this Agreement in a representative

   capacity represents to the other PARTY that he or she has actual, full authority to execute

   this Agreement on behalf of his or her principal.

32. Advice of Counsel. All PARTIES acknowledge that they have been represented and

   advised by legal counsel of their choosing in the negotiation, drafting and execution of

   this Agreement.

33. Governing Law. This Agreement shall be governed and interpreted under the internal

   laws of the State of Massachusetts. All PARTIES consent to the jurisdiction and venue
                      EXAMPLE 3 - Two Potential Plaintiffs Represented by Separate Attorneys


        in the Circuit Court of Middlesex County or the United States District Court for the

        District of Massachusetts for any actions arising out of this Agreement.

   34. Notices. Any notices required or permitted to be given under this Agreement shall be

        delivered in person, by first class mail or by confirmed email to the other PARTY at the

        following addresses:

Party                                        With a copy to:

General Counsel                              Private Counsel
CONSTRUCTION CO.                             SMITH & JONES, PC
123 West Rd.                                 456 North Ave.
Sudbury, MA                                  Boston, MA
Em: gc@construction.com                      Em: pcounsel@smithjones.com

General Counsel                              Private Counsel
EXCAVATOR, INC.                              ARNOLD & HAMILTON
789 South St.                                111 East Lane
Westborough, MA                              Boston, MA
Em: gc@excavator.com                         Em: pcounsel@ah.com

   35. Counterparts. This Agreement may be signed in counterparts, all of which taken

        together shall constitute one agreement.



CONSTRUCTION CO.                                     EXCAVATOR, INC.

By _____________________________                     By _________________________

Its _____________________________                    Its ___________________________

Dated ___________________________                    Dated ________________________

				
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