When and how should a corporation facing investigation coordinate legal strategy and cooperate with its own employees and their counsel? This question often confronts corporate counsel conducting an internal investigation as they consider how to approach individual employees who are or may become subjects of a government investigation. One way to help assure that information can be obtained from such employees is to conclude a joint defense agreement (JDA), an agreement that enables multiple parties in actual or threatened litigation or prosecution to coordinate and jointly assess the government’s case. JDAs protect communications passing from one party or its attorneys to another party or its attorneys or their agents, so long as those communications are in furtherance of conducting a joint defense.1

By permitting parties to share resources without waiving privilege or work-product protections, JDAs allow corporations to prepare a stronger defense and get insight into the government’s inquiries of individual employees and their counsel. However, JDAs must be used carefully where a corporation is conducting an internal investigation because such agreements could both antagonize government investigators or limit a corporation’s ability to disclose information to the government without the consent of other parties to the JDA.

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