Court Compels Production of Joint Defense Agreement As Not Protected By Privilege

• Posted on: Oct 15 2025

By: Jeffrey M. Haber

On numerous occasions, this Blog has examined the attorney-client privilege, the common interest doctrine, and the attorney work product doctrine.[1] Today, we take another opportunity to explore the contours of these privileges.

In Simpson v. Chassen, the New York Supreme Court compelled the production of a joint defense agreement (“JDA”), rejecting claims that it was protected under the attorney-client privilege or the attorney work product doctrine. The motion court found that the JDA did not establish an attorney-client relationship or facilitate legal advice, and thus was not privileged. It also ruled that the JDA lacked legal analysis or strategy, rendering it unprotected as attorney work product.

Disclosure and The Attorney-Client Privilege

The Civil Practice Law and Rules (“CPLR”) directs that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action.”[2] Notwithstanding, the CPLR establishes three categories of materials protected from disclosure: privileged matter, which is afforded absolute immunity from discovery[3]; attorney work product, which is also afforded absolute immunity[4]; and trial preparation material, which is subject to disclosure only on a showing of substantial need and undue hardship in obtaining substantially equivalent material by other means.[5]

As the New York Court of Appeals noted, there exists an obvious tension between the policy favoring full disclosure and the policy permitting parties to withhold relevant information.[6] Consequently, the burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying immunity.[7]

The burden cannot be satisfied by conclusory assertions of privilege. Rather, the proponent of the privilege must set forth competent evidence establishing the elements of the privilege.[8]

The attorney-client privilege is the oldest among common-law evidentiary privileges.[9] It is intended to foster open and candid dialogue between lawyer and client and is deemed essential to effective representation.[10]

In order for the privilege to apply, the communication from attorney to client must be made for “the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.”[11] The communication itself must be primarily or predominantly of legal character.[12]

Communications Protected From Disclosure

The attorney-client privilege insulates from disclosure a discreet category of communications between attorney, client, and, in some instances, third parties that assist the attorney to formulate and render legal advice.[13] The privilege does not apply merely because a statement was uttered by or to an attorney (or an attorney’s agent). Nor does it attach simply because a statement conveys advice that is legal in nature.[14]

The privilege is not limited, however, to communications directly between the client and counsel. It also encompasses communications between an attorney and a client’s agent or representative, provided that the communications are intended to facilitate the provision of legal services by the attorney to the client.[15] It does not, however, protect communications between a non-lawyer and a client that involve the conveyance of legal advice offered by the non-lawyer, except when the non-lawyer is acting under the supervision or the direction of an attorney.[16]

Moreover, the privilege protects from disclosure communications among corporate employees that reflect advice rendered by counsel to the corporation.[17] “A privileged communication should not lose its protection if an executive relays legal advice to another who shares responsibility for the subject matter underlying the consultation.”[18] This follows from the recognition that since the decision-making power of the corporate client may be diffused among several employees, the dissemination of confidential information to such persons does not defeat the privilege.[19]

The Common Interest Protection

Under the common interest doctrine, the presence of a third party will not destroy a claim of privilege where two or more clients separately retain counsel to advise them on matters of common legal interest.

The doctrine originated in the context of criminal cases, where the courts “allowed the attorneys of criminal co-defendants to share confidential information about defense strategies without waiving the privilege as against third parties.”[20] 

In New York, the Court of Appeals first recognized the common interest doctrine in People v Osorio, 75 N.Y.2d 80 (1989). Thereafter, New York courts have applied the common interest doctrine to both criminal and civil matters, to communications of both co-plaintiffs and co-defendants, but always in the context of pending or reasonably anticipated litigation.[21] Although federal courts have extended the exception regardless of whether litigation is pending or threatened,[22] the Court of Appeals has declined to do so.[23] 

In declining to extend the doctrine, the Court noted that limiting the doctrine “to situations where the benefit and the necessity of shared communications are at their highest” – i.e., during litigation or when there is the threat of litigation – reduces the risk of misuse.[24]  The Court reasoned that “the common interest doctrine promotes candor that may otherwise have been inhibited” between co-litigants.[25] Otherwise, “the threat of mandatory disclosure may chill the parties’ exchange of privileged information and therefore thwart any desire to coordinate legal strategy.”[26] 

The Court rejected the notion that there is a shared common legal interest in a commercial transaction or other common situation “outside the context of litigation” or the threat of litigation.[27]

The Court further rejected the argument that limiting the exception to litigation “will create an anomalous result: clients who retain separate attorneys … cannot protect their shared communications absent pending litigation but the same communications made in the absence of litigation would be privileged if [they] had simply hired a single attorney to represent them” in a non-litigation context.[28] The Court reasoned that “[i]n the joint client or co-client setting … the clients indisputably share a complete alignment of interests in order for the attorney, ethically, to represent both parties. Accordingly, there is no question that the clients share a common identity and all joint communications will be in furtherance of that joint representation.”[29]  But when clients retain separate attorneys to represent them on a matter of common legal interest, that is not so. “It is less likely that the positions of separately-represented clients will be aligned such that the attorney for one acts as the attorney for all, and the difficulty of determining whether separately-represented clients share a sufficiently common legal interest becomes even more obtuse outside the context of pending or anticipated litigation.”[30] “Consequently,” held the Court, “although a litigation limitation may not be necessary in a co-client setting where the fact of joint representation alone is often enough to establish a congruity of interests, it serves as a valuable safeguard against separately-represented parties who seek to shield exchanged communications from disclosure based on an alleged commonality of legal interests but who have only commercial or business interests to protect.”[31]

The Attorney Work Product Doctrine

The attorney work product doctrine protects those materials prepared by an attorney, acting as an attorney, which contain the attorney’s analysis and trial strategy.[32] The work product of an attorney consists of interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and other tangible and intangible things.[33] As with the attorney-client privilege, the burden of showing that material is protected under the doctrine is on the party asserting the protection.[34] Conclusory assertions that documents constitute attorney work product or material prepared for litigation will not suffice.[35]

In Simpson v. Chassen, 2025 N.Y. Slip Op. 33702(U) (Sup. Ct., N.Y. County Sept. 29, 2025), the foregoing principles were considered by the Supreme Court in a case involving a motion to compel the production of a joint defense agreement.

Simpson v. Chassen

Plaintiffs brought the action to reverse “a coup d’état” allegedly executed by defendant Jared Chassen (“Chassen”) in which defendant sought to seize control over certain entities controlled by plaintiff Jeffrey Simpson (“Simpson”) (e.g., Arch Real Estate Holdings LLC (“Arch”) and JJ Arch LLC (“JJ Arch”) (collectively, Arch and JJ Arch are the “Arch Entities”)).[36] In addition, Plaintiffs sought to redress defendant’s alleged conduct that left Simpson unable to exercise control over bank accounts maintained by the Arch Entities and their affiliates and subsidiaries at defendant First Republic Bank (“First Republic”), which allegedly left the Arch Entities unable to use such accounts to pay for such necessities as payroll, subcontractors, materialmen, and insurance.

Plaintiff moved pursuant to CPLR 3101 and 3124 to compel Chassen to produce a joint defense agreement between Chassen, 608941 NJ, Inc. (“Oak”),[37] and related parties in August 2023.[38]

Simpson contended that the JDA was “material and necessary” to the litigation because it would reveal “collusion” between Chassen and Oak to “oust Mr. Simpson” from management, circumvent corporate governance controls, and relieve Oak from guaranty liabilities to the detriment of non-Oak investors.

Defendants opposed the motion, arguing, inter alia, that the JDA is protected by the common interest and attorney-work-product privileges and that Simpson failed to show that its disclosure was material to any pending claims or defenses.

The motion court held “that the JDA [was] not a privileged communication exempt from discovery.”[39] The motion court explained that “the JDA merely state[d] the parties’ intention that all information they share[d] with each other remain[ed] subject to the attorney-client privilege, despite their disclosure to each other.”[40] Significantly, noted the motion court, the JDA “expressly state[d] that it create[d] no attorney-client relationship …  and … [was] not a communication from an attorney to a client made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.”[41]

The motion court also found “Chassen’s contention that the JDA qualifie[d] as attorney work-product” to be “unavailing”.[42] The motion court said that “[a]lthough the JDA was prepared by counsel, … , it nevertheless “contain[ed] only standard language not uniquely reflecting a lawyer’s learning and professional skills, including legal research, analysis, conclusions, legal theory or strategy.”[43] The motion court concluded, therefore, “[i]t [was] essentially a standard form agreement.”[44]

Accordingly, the motion court granted the motion.

Takeaway

Simpson reinforces the principle that the common interest doctrine is limited to situations involving pending or reasonably anticipated litigation. This means that parties who share legal interests—but are not involved in litigation—may not be able to rely on the doctrine to shield their communications from disclosure. The ruling, therefore, makes clear that joint defense agreements or common interest agreements are not automatically privileged and may be subject to disclosure—even if prepared by counsel.

_______________________________

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] We examined these privileges in the following articles: “Revisiting The Attorney-Client Privilege, The Common Interest Doctrine and The Work Product Doctrine”; “Reliance on Counsel Found to Waive Attorney-Client Privilege”; “Subject-Matter Waiver of the Attorney-Client Privilege”; “Attorney-Client Privilege and The Functional-Equivalent Doctrine”; “Court Holds That A Common Interest Agreement Bars Disclosure of Material Protected by The Attorney-Client Privilege”; and “Court Holds Common Interest Agreement Covers Privileged Documents Predating the Litigation”.

[2] CPLR 3101(a).

[3] CPLR 3101(b).

[4] CPLR 3101(c).

[5] CPLR 3101(d)(2); see also Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371 (1991).

[6] Spectrum Sys., 78 N.Y.2d at 377.

[7] Id.; Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69 (1980); Matter of Jacqueline F., 47 N.Y.2d 215 (1979).

[8] Delta Fin. Corp. v. Morrison, 15 Misc. 3d 308, 316-17 (Sup. Ct., Nassau County 2007); see also Martino v. Kalbacher, 225 A.D.2d 862 (3d Dept. 1996).

[9] 8 Wigmore, Evidence § 2290 (McNaughton rev. 1961).

[10] See Matter of Vanderbilt (Rosner—Hickey), 57 N.Y.2d 66 (1982).

[11] Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 593 (1989).

[12] Id. at 594.

[13] See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961); see also Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991).

[14] See HPD Labs., Inc. v. Clorox Co., 202 F.R.D 410 (D.N.J. 2001).

[15] Delta Fin., 15 Misc. 3d at 316-17 (citations omitted).

[16] Id. (citations omitted).

[17] Id. (citations omitted).

[18] See SCM Corp. v. Xerox Corp., 70 F.R.D 508, 518 (D. Conn. 1976).

[19] Id. (citation omitted).

[20] In re Teleglobe Communications Corp., 493 F.3d 345, 364 (3d Cir. 2007).

[21]  See, e.g., Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186 (2d Dept. 2013).

[22] E.g., Teleglobe, 493 F.3d at 364; United States v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir 2007); In re Regents of Univ. of Cal., 101 F.3d 1386, 1390-1391 (Fed. Cir. 1996))

[23] Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 628 (2016).

[24] Id. at 628.

[25]  Id.

[26] Id.

[27] Id. at 629-30.

[28] Id. at 630-31.

[29] Id. at 631(citation omitted).

[30]  Id. 

[31]  Id. (citations omitted).

[32] See Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 3101.44 (2d ed.); see also Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s, 263 A.D.2d 367 (1st Dept. 1999).

[33] Hickman v. Taylor, 329 U.S. 495 (1947).

[34] See generally Koump v. Smith, 25 N.Y.2d 287 (1969).

[35] See Salzer v. Farm Family Life Ins. Co., 280 A.D.2d 844 (3d Dept. 2001); Zimmerman v. Nassau Hosp., 76 A.D.2d 921 (2d Dept. 1980).

[36] The summary of the action is taken from the pleadings filed in the action.

[37]  Plaintiff maintained that Chassen and Oak colluded to relieve Oak of hundreds of millions of dollars in property loan guarantee obligations related to numerous Arch property investments to the detriment of non-Oak investors.

[38] On August 18, 2025, the motion court ordered Chassen to submit the JDA for in-camera inspection. On August 22, 2025, Chassen submitted the JDA to the Court for its review.

[39] Slip Op. at *3 (citing Fewer v. GFI Group, Inc., 78 A.D.3d 412, 413 (1st Dept. 2010)).

[40] Id. (quoting id. (internal quotation marks omitted)).

[41] Id. (quoting id. (internal quotation marks omitted)).

[42] Id.

[43] Id. (citing id.).

[44] Id.

Tagged with: Attorney Work Product, Attorney-Client Privilege, Business Litigation, Civil Practice Law and Rules, Commercial Litigation, Common Interest Agreement