Will Illinois Accept the Joint-Defense Privilege?

Will Illinois accept the joint-defense privilege as an exception to a waiver of the attorney-client privilege? The Appellate Court’s First District seems to think so.
In November 2017, the Court considered whether the joint-defense privilege was a common-interest exception to a waiver of the traditional attorney-client privilege in Selby v. O’Dea, 90 N.E.3d 1144 (Ill. App. 1st Dist. 2017). In adopting the joint-defense privilege the Court allowed for the following statements to be made to third parties without fear of discovery:

  1. Statements that further a common interests of parties to litigations. The definition of “common interest” varies as parties need not be fully aligned. Instead they may share a common interest in one sense and be incompatible in others; any joint communication (as relating to that common interest) will be protected;
  2. Statements that are pursuant to a common-interest agreement;
  3. And statements that are made between parties provided an attorney for at least one party is present.

Selby does not address a joint-defense agreement where one party agrees to defend another or to indemnify another for defense costs or liability for damages. However, looking at cases in other jurisdictions, (where the agreement includes an agreement by one defendant to defend, fund the defense of, or indemnify another), the defense/indemnification provisions—or at least their existence—may be discoverable on the basis that they have probative value as to the potential bias of witnesses for the parties. However, the existence and terms of an agreement by one party to indemnify another are not protected by the attorney-client privilege or work-product doctrine.
As of now, other courts currently consider the joint-defense privilege as a separate privilege. Only this Court has linked the joint-defense privilege to the common-interest exception. If the others fall in line, this privilege would only apply to statements that would otherwise be protected by the attorney-client privilege or work-product doctrine. In that case, the rule would not protect statements made by one party to the other party when neither party’s attorney was present. Overall, it remains to be seen whether the Appellate Court First District’s decision will be precedent or passed over.

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