COMMON INTERESTS PLAINTIFFS' AGREEMENT
D R A F T ( 04 -18- 07)
This Common Interests Plaintiffs' Agreement ("Agreement") is entered into by and between the undersigned counsel on their own behalf and on behalf of their respective clients (each a "Party," and collectively the "Parties") this ___ day of May, 2007.
WHEREAS, the Parties desire to memorialize and confirm their mutual oral understandings and agreements concerning their common Plaintiffs' obligations, as set forth below;
WHEREAS, the common claims described hereunder arise from the Parties' interests in litigation concerning their respective clients currently pending in United States District Courts and the United States Court of Federal Claims (the "Litigation," Exhibit A);
WHEREAS, the Parties believe that the Litigation raises issues of common interest and that the sharing of documents, factual material, mental impressions of counsel, memoranda, reports, litigation strategies and other information, including the confidences of each client that is a Party hereto (hereinafter collectively referred to as "Plaintiffs' Materials"), will facilitate the rendition of professional legal services in the Litigation, to the mutual benefit of the Parties;
WHEREAS, the Parties believe, on the basis of currently available information, that there have been, are and will be various common factual and legal issues and that there is a mutuality of interests among the Parties in following a common legal strategy in connection with the Litigation;
WHEREAS, each Party also wishes to continue to pursue its separate interests and to avoid any suggestion of waiver of the confidentiality or immunity of communications and documents protected by the attorney-client privilege, the attorney work product privilege, or any other privilege or immunity vis-à-vis potentially adverse parties;
WHEREAS, in order to pursue common interests effectively, each Party has concluded that, from time to time, its common interests and the interests of the other Parties are best served by a sharing of Plaintiffs' Materials and of Confidential Information, as defined below;
WHEREAS, in the absence of such sharing, Plaintiffs' Materials would be privileged from disclosure to adverse or other parties as a result of the attorney-client privilege, the attorney work product privilege, and other applicable privileges and immunities; and
WHEREAS, it is the purpose of this Agreement to ensure that the exchange and/or disclosure of the Plaintiffs' Materials and Confidential Information contemplated by this Agreement does not diminish in any way the confidentiality of any Plaintiffs' Materials or Confidential Information, as defined below, and does not constitute a waiver of any privilege or immunity otherwise available; and
WHEREAS, there are other similarly situated persons and entities with common interests with the Parties who may in the future wish to become Parties to this Agreement.
IT IS THEREFORE AGREED as follows:
1. The sharing among the Parties of Plaintiffs' Materials or Confidential Information, as defined below, does not cause, and shall not give a right to anyone to claim that it causes, a waiver of the attorney-client privilege, the attorney work product privilege, or any other applicable privilege or immunity with respect to any Plaintiffs' Materials. The parties recognize and agree that facts and other information which are not otherwise privileged from disclosure shall not gain any privilege simply because such facts and other information may be shared in a Common Interests Communication [DO ES THIS "CIC" NEED DEFINING ??] . Although information may not be privileged, the common interests and work product privileges do protect against disclosure of (a) the fact that particular Common Interests Communications have been made among the Parties to this Agreement, (b) the contents of such Common Interests Communications, and (c) any part of memoranda or other work product containing or referring to such Common Interests Communications.
2. This Agreement covers Plaintiffs' Materials and any other information not available to the general public that is produced during discovery in the Litigation (such other information being herein referred to as "Confidential Information"). The words "use" or "used" in this Agreement to describe the purposes to which Plaintiffs' Materials and Confidential Information may be put with respect to the Litigation means that each Party may use Plaintiffs' Materials or Confidential Information: (a) to form its strategy for claims and defenses in the Litigation; (b) to prepare for its claims or defenses in the Litigation; (c) to take or defend any depositions or interviews relating to the Litigation; and (d) to prepare or respond to any discovery relating to the Litigation. In connection with its use of Plaintiffs' Materials, a Party may provide access thereto, subject to paragraph 3, only to (i) the governing tribal bodies of their clients, and (ii) attorneys, paralegals, and employees of the law firm-Parties or in-house Tribal legal counselthat are signatories of this Agreement who are working on the Litigation.
3. A Party may provide access to Confidential Information only as allowed by paragraph 4 and only to (i) persons allowed to receive Plaintiffs' Materials under paragraph 2; and (ii) consultants to any Party who are assisting in the Litigation and who agree in writing to be bound by this Agreement. Except as permitted by the immediately preceding sentence, no Plaintiffs' Materials or Confidential Information may be provided to any third party without the prior written consent of the Party that provided such Plaintiffs' Materials or Confidential Information (and subject to such restrictions as the providing Party may require, in its sole discretion).
4. Each person permitted access to any Plaintiffs' Materials or Confidential Information under the terms of this Agreement other than the persons described in the last sentence of paragraph 2 shall be advised specifically that such materials are subject to the terms of this Agreement and shall consent in writing to abide by the terms of this Agreement prior to receiving access to any such materials. Nothing in this Agreement shall oblige any Party to share or communicate any Plaintiffs' Materials or Confidential Information with any other Party or restrict any Party in the use of its own Plaintiffs' Materials or Confidential Information.
5. No Party to this Agreement shall disclose at any time to any third party any Plaintiffs Materials or Confidential Information received from another Party pursuant to this Agreement, except as provided in this Agreement. Each Party shall be entitled to have this Agreement specifically performed by the issuance of a preliminary and permanent injunction barring any such disclosure and each Party concedes that such disclosure would irreparably injure the Party who provided the Plaintiffs' Materials or Confidential Information to be disclosed.
6. If any third party or entity requests or demands, by subpoena or otherwise, any Plaintiffs' Materials or Confidential Information from any Party, that Party (through its counsel if it so elects) will immediately notify each Party, and each Party so notified shall, at is own expense, take all actions as are available to it to permit the assertion of all applicable rights, privileges, and immunities with respect to said Plaintiffs' Materials or Confidential Information and shall cooperate fully with all other undersigned counsel in any proceeding relating to the disclosure of Plaintiffs' Materials or Confidential Information.
7. Plaintiffs' Materials and Confidential Information (including, without limitation, all copies thereof and the relevant portions of any notes or other documents reflecting Plaintiffs' Materials or Confidential Information or the contents of Plaintiffs' Materials or Confidential Information) shall be returned promptly to the Party that provided them upon written request at any time of that Party. The obligations of the Parties not to disclose Plaintiffs' Materials or Confidential Information, except in accordance with this Agreement, shall not be affected by the return of those materials or the termination of this Agreement.
8. If any Party asserts a claim or defense against any other Party, the Parties hereto agree that each law firm-Party that has access to, or receives, any Plaintiffs' Materials or Confidential Information under this Agreement shall remain qualified nonetheless to continue to represent its client-Party in the pursuit of that claim or defense and in all other matters relating to that claim or defense. Nothing in this Agreement shall serve as a basis to disqualify an attorney for a Party from representing that Party in respect of any matter or issue that is adverse to another Party, any and all such possible bases for disqualification being hereby expressly waived. Each Party is represented solely by its own attorney, and no attorney for any one Party shall owe a duty of loyalty to any other Party, except as may be expressly agreed by such attorneys and Parties. The Party pursuing a claim or defense against any other Party may, in that pursuit, use its own Plaintiffs' Materials and Confidential Information, but may not use any other Plaintiffs' Materials or Confidential Information it has received pursuant to this Agreement from any other Party, unless obtained independently of any disclosure of the same pursuant to this Agreement.
9. In the event that any Party, whether directly or through its attorney or agent, enters into any agreement with a third party that is in any respect actually inconsistent with the continued sharing of Plaintiffs' Materials or Confidential Information under this Agreement, such Party shall: (i) be deemed to have withdrawn from this Agreement; (ii) immediately, through counsel, inform the other Parties to this Agreement of such withdrawal; (iii) immediately thereafter return to the other Parties all Plaintiffs' Materials or Confidential Information materials obtained from said Parties and all copies thereof; (iv) immediately thereafter, through counsel, place the third party on notice that said Party is in possession of privileged information obtained from other parties to a Common Interests Plaintiffs' Agreement, which information said Party is barred from disclosing or using, and that the third party acts at his or her peril if s/he solicits, receives, and/or exploits such information; and (v) refrain from disclosing to the third party any Plaintiffs' Materials or Confidential Information furnished pursuant to this Agreement. It is further expressly agreed that reaching any such agreement with a third party does not relieve a Party hereto, or its agents or attorneys, from their continuing obligations under this Agreement to maintain the privileged nature and confidentiality of all Plaintiffs' Materials and Confidential Information obtained pursuant to this Agreement.
10. Notwithstanding any other provision of this Agreement, if any Party, or agent or employee of any Party, is called upon to testify in any proceeding, counsel for any other Party to this Agreement will not be disqualified from cross-examining the testifying Party-affiliated person because of such Party's participation in this Agreement, including on the ground that such counsel has been privy to attorney-client communications pursuant to this Agreement; and it is herein represented that each counsel that is a Party to this Agreement has specifically advised its client that is a Party of this clause. Plaintiffs' Materials, Confidential Information or their contents will not, however, be used in any way in or in connection with any such cross-examination, unless obtained independent of any disclosure under this Agreement and through the normal discovery process.
11. Each client that is a Party is free to withdraw from this Agreement at any time upon prior written notice, through its counsel, to all other Parties, in which case this Agreement shall no longer be operative as to the withdrawing Party and its counsel, but shall continue to protect all Plaintiffs' Materials or Confidential Information that were disclosed to the withdrawing Party and its counsel prior to such withdrawal. The withdrawing Party and its counsel shall return promptly all Plaintiffs' Materials or Confidential Information, including all copies thereof, and shall continue to be bound by this Agreement with regard to any information learned or obtained prior to such withdrawal. It is further agreed that the confidentiality prescribed above will not become retrospectively inoperative if adversity should subsequently arise between the Parties, irrespective of any claim that the joint prosecution of claims and/or common interest privilege may otherwise become prospectively inoperative by virtue of such claimed adversity.
12. Additional tribes with common interests with the Parties, as described above, and their attorneys, may become Parties to this Agreement hereafter through use of the following procedure: Such proposed new party shall execute a written notice that it wishes to become a Party and intends to be bound by this Agreement, and shall forward such notice to the Native American Rights Fund (NARF), which shall thereupon distribute a copy thereof to each of the Parties. Each Party shall have fifteen days from receipt of the copy of the notice from NARF to execute and deliver to NARF any written objection to entry into the Agreement by the proposed new party. If no such objection is timely received, then the proposed new party shall execute a signature page in similar form to those executed by the other Parties and shall thereafter be deemed a Party to this Agreement for all purposes. If an objection is timely received, the proposed new party shall not be a Party to this Agreement unless and until any such objection is withdrawn.
13. This Agreement memorializes all prior oral understandings and agreements of the Parties, pursuant to which any Plaintiffs' Materials or Confidential Information have been exchanged. The Parties understand and agree that all Plaintiffs' Materials and Confidential Materials that were exchanged between or among the undersigned counsel prior to the date of this Agreement shall be subject to the terms of this Agreement. From and after the date of this Agreement, this Agreement shall constitute the entire agreement of the Parties concerning Plaintiffs' Materials or Confidential Information and supersede all prior oral understandings and agreements on that subject matter.
14. This Agreement does not obligate any Party to disclose any Plaintiffs' Materials or Confidential Information.
15. This Agreement is not admissible in any proceeding except where a Party seeks to have the terms of this Agreement enforced or if required to comply with any subpoena or judicial order with notification to the other Parties sufficiently in advance of such disclosure to permit such Party to appear and defend against disclosure.
16. Except with respect to the possible addition of new Parties provided for in paragraph 12 above, this Agreement may not be amended or modified except by a written agreement signed by each signatory hereto. This Agreement shall be governed by, and construed in accordance with, the laws of the District of Columbia as applied to contracts executed and fully performed therein. No Party shall be deemed to have been the draftsperson of any provision of this Agreement for purposes of any rule of construction or interpretation of a contract.
17. This Agreement and any amendments thereto may be executed in multiple counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement in enforcing its provisions to produce or account for more than one such counterpart. Counterparts and any other notices provided for in this Agreement may be delivered by any reasonable method of transmission, including by telecopy or as an email attachment. In addition, NARF may serve as a central repository and distribution point for delivery and receipt of counterparts and other notices for the Parties. Unless explicitly provided otherwise in this Agreement, delivery of a counterpart or any other notice provided for in this Agreement shall be effective upon delivery to NARF, which shall thereupon arrange for distribution of the counterpart or notice to the other Parties.
18. Nothing in this agreement shall prevent any Party from complying with a binding order of a court of competent jurisdiction.
19. This Agreement shall apply to substitute or associated counsel who appear on behalf of any Party, provided such counsel agrees in writing to be bound by this Agreement.
20. This Agreement represents and confirms the understanding and intent of the Parties at all times that this Agreement is deemed effective as of the first date on which Plaintiffs’ Material or Confidential Information are shared by or with any of the Parties. The Parties shall mark Plaintiffs’ Material and Confidential Information exchanged hereunder as “Confidential and Privileged Communication Subject to Common Interests Plaintiffs’ Agreement”.
IN WITNESS WHERE OF, the undersigned counsel and their respective Parties have executed this Agreement.
Native American Rights Fund
Counsel for __________________________________________________
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