Non-Disclosure Agreement and Terms of Confidentiality
This Joint Prosecution and Confidentiality Agreement is made and entered into by and between the Undersigned Trial School Member and the Trial School, Inc. (‘Trial School’), acting on behalf of the other Trial School Members who represent plaintiffs in personal injury and wrongful death actions. The Undersigned Member, the Trial School, and all Trial School Members desire to collaborate in the development and perfection of effective trial advocacy methods to better serve their respective clients and better prepare and try their clients’ cases to verdict. This Agreement memorializes the Trial School’s purpose and the obligations of each Member. Signing onto this Agreement is a requirement for Membership of the Trial School. Because the core purpose of the Trial School requires that Members share confidential and privileged information with one another, the Undersigned Member recognizes that violations of this Agreement shall be deemed a violation of the applicable attorney ethics codes, including those pertaining to the protection of confidential and privileged information. WHEREAS, the Trial School was organized and operates for the sole purpose of providing training, instruction, and support to its Members handling similar claims in a context in which Members may develop and share work product information without compromising the entitlement to work product protection and other applicable privileges and protections; and WHEREAS, the Undersigned Member, like all other Trial School Members, represents civil plaintiffs in personal injury and wrongful death actions; and WHEREAS, the Trial School Members’ cases involve many of the same or similar issues as to trial preparation, presentation, technique, tactics, and strategy; and WHEREAS, the Trial School Members must be able to engage in practice sessions and focus groups with other Trial School Members to best hone advocacy skills and apply those skills to their actual cases; and WHEREAS, the Trial School Members’ cases involve overlapping legal, factual, and practical issues which shape and govern how the Members can effectively advocate on behalf of their similarly situated clients at trial; and WHEREAS, the Trial School Members are confronted with the same or similar arguments, techniques, and strategies from the Civil Defense Bar, including from organizations like the Defense Research Institute, and effectively addressing those arguments, techniques, and strategies is best served through effective cooperation and the sharing of ideas, strategies, tactics, and work product by the Trial School Members; and WHEREAS, the Undersigned Member and all other Trial School Members have a compelling need to obtain access to a collaborative mechanism to fairly and effectively prepare their clients’ claims for trial and to achieve just resolutions of their clients’ claims through trial, NOW, in consideration of the mutual promises, undertakings, and obligations provided for herein, the Undersigned Member, the Trial School, and all Trial School Members represent and agree as follows:
Neither the Undersigned Members nor anyone associated with the Undersigned Member’s law firm: (a) represents any corporations, including but not limited to insurance companies; or (b) practices any type of defense in tort actions.
By virtue of the commonality of the issues involved in effectively trying the Trial School Members’ cases to verdict, the Undersigned Member and all other Trial School Members believe that they and their clients have a mutuality of interests in, and that their interests will be best served by, a joint and coordinated effort to develop and perfect the best trial advocacy methods for use in their cases.
The Undersigned Member and all other Trial School Members have determined that the mutual interests of their clients and themselves will be best served by sharing and exchanging ‘Protected Materials,’ which in the absence of such sharing would be privileged from disclosure to third parties as a result of the attorney-client privilege, the attorney work-product doctrine, and other applicable privileges and immunities. ‘Without this kind of privileged exchange, the Undersigned Member and the other Trial School Members would be unable to effectively develop and perfect the best trial advocacy methods for use in their cases. As a result, this Agreement is designed to ensure that any exchange or disclosure of Protected Materials does not act to diminish the confidentiality, immunities, and protections of the Protected Materials in any manner, and does not constitute a waiver of any privilege, immunity, or other protection which would be otherwise applicable.
‘Protected Materials’ refers to documents, information, correspondence, and other materials contained in, presented at, or taken from any Trial School meeting or the Trial School website, or otherwise shared between Trial School Members.
The Undersigned Member agrees to maintain the confidential status of all Protected Materials acquired in furtherance of this Agreement and agrees that all Protected Materials shall be maintained in absolute confidence. To maintain the confidentiality of all Protected Materials, the Undersigned Member:
Will not share, copy, disseminate, summarize, or describe any Protected Materials with or around anyone who is not a Member of the Trial School, or in any setting where the information may be seen, heard, recorded, or copied by individuals who are not Trial School Members;
Will take whatever action (including internal procedures and legal action) that is necessary and appropriate to preserve the work product status and confidentiality of the Protected Materials;
Will not disclose that they have received any Protected Materials from the Trial School;
Will immediately notify the Trial School’s Chief Officer (Rich Newsome) if they have received any type of request for Protected Materials from the Trial School, and shall agree to fully cooperate with the Trial School in order to prevent the disclosure of Protected Materials; and
Will, in the event of receiving an order compelling production of Protected Materials, immediately notify the Trial School’s Chief Officer (Rich Newsome) and move for the entry of a protective order against disclosure of the Protected Materials, or in the alternative, precluding the attorneys in the subject case from disseminating the Protected Materials to anyone (attorneys or non-attorneys) outside the confines of the subject case; the protective order shall further restrict the use of these materials to only the subject litigation in which they were produced and require the return of the original and any copies of the materials at the completion of the case.
In exchange for the promises above, the Trial School agrees to allow the Undersigned Member to participate in Trial School meetings, practice sessions, and focus groups, and to obtain access to the Protected Materials and the Trial School Website.
Any obligation assumed under this Agreement shall survive the dismissal, settlement, or other resolution of any individual claim handled by the Undersigned Member and the termination of the Undersigned Member’s membership in the Trial School.
Any Protected Materials exchanged pursuant to this Agreement may be used for the purposes outlined in this Agreement and for no other purpose. ‘However, each Member shall retain the right use Protected Materials that Member himself or herself has provided for any purpose that individual wishes.
To the extent that the Undersigned Member fails to comply with any provision set forth above: (a) the Undersigned Member’s membership shall be subject to immediate termination; and (b) the Undersigned Member shall be reported to each Bar in which they are licensed for having violated their ethical obligations, including those governing the protection of confidential and privileged materials.
This Agreement itself shall be privileged and confidential, except as may be necessary to enforce its terms or to assert the privileges and immunities protected by the Agreement.