Sample Joint Defense/Common Interest AgreementSample Joint Defense/Common Interest Agreement in Connection With Potential or ActualLitigation Relating to Contaminated PropertyThis Joint Defense Agreement (“Agreement”) is made effective as of , by and between, and [or attach an Exhibit listing all parties to the agreement], whichare collectively referred to herein as the “Parties.”WHEREAS, the Parties [have been sued in the civil action captioned (the “Action”)] or [havebeen identified as potentially responsible parties in connection with a matter that may result in litigation (the“Potential Action”)] relating to alleged environmental contamination at or near (hereafter the“Property” or the “Site”); andWHEREAS, the Parties have certain substantially similar interests and recognize that certain mutuallybeneficial activities might be undertaken with regard to responding to allegations that have been, or may be,asserted against them relating to conditions at or near the Property (hereafter “Covered Matters”); andWHEREAS, the Parties may, with the purpose of assisting in any common defense or investigation ofallegations made against them, engage in communications or elect to disclose or transmit to each otherotherwise privileged, confidential or proprietary communications, information, or documents; mentalimpressions; investigative information; memoranda; interview reports; expert reports; and other privileged,confidential, proprietary or otherwise protected communications, information, or documents relating to theCovered Matters (the “Covered Materials”) that may be protected from disclosure to adverse or other Parties asa result of the attorney-client privilege, the work-product privilege, the joint defense doctrine, the commoninterest doctrine and/or other applicable privileges, rights, or rules; andWHEREAS, the Parties desire that such Covered Materials shall remain privileged and confidential orotherwise protected from disclosure; andWHEREAS, the Parties agree that the execution of this Agreement is made in good faith for thepurpose of promoting cooperation and limiting administrative and legal costs.NOW, THEREFORE, in consideration of the agreements and obligations listed below, the Parties, byand through their authorized representatives, hereby agree as follows:

1. Confidentiality and Use of Information.a) The Parties agree that the existence and terms of this Agreement shall be kept confidential, exceptthat the Agreement and its terms may be disclosed in any action to enforce the Agreement, or asotherwise may be required by administrative or court order or other applicable law.b) The Parties recognize and agree that Covered Materials voluntarily exchanged among the Partiesare covered by the “Joint Defense Doctrine” and/or the “Common Interest Doctrine.” All CoveredMaterials previously exchanged among the Parties are subject to the provisions of this Agreement.c) It was and is the mutual understanding of the Parties that the exchanges and disclosures referred toin this Agreement are not intended to diminish in any way the confidentiality of such CoveredMaterials, and any exchange of Covered Materials is not intended to and will not be deemed toconstitute a waiver of any available privilege or right. All communications relating to thefurtherance of the common interest/joint defense, or made in connection with Covered Matters andamong any of the signatories of this Agreement, are confidential, and no privilege shall be deemedto be waived with respect to, or as a result of, such communication(s).d) Covered Materials disclosed by one Party to any other Party shall be deemed and kept confidentialbut may be shared with and among the Parties and may be used by the disclosing party as it seesfit. Covered Materials will not be shown or produced by a receiving Party to anyone not a Partyexcept as otherwise provided herein. Such Covered Materials may be disclosed by the receivingParty only: (i) with the consent of the disclosing Party in furtherance of the receiving Party’s defenseof Covered Matters, (ii) if required by administrative or judicial order, or (iii) with the prior consent ofthe disclosing Party, which shall not be unreasonably withheld, to a third party auditor, insurer,financial accountant, or financial advisor. In the case of any disclosure to a third party under (iii)above, such person shall be specifically informed of the obligations of confidentiality and shall agreein writing to be bound thereby before the Covered Materials are disclosed.e) Disclosure of Covered Materials by a Party or its counsel to either Party’s experts or consultants isnot a waiver of the attorney-client privilege, the work product privilege, the joint defense privilege,or any other privilege or immunity. Each Party shall instruct its experts or consultants not todisclose information to any third party without prior consent of the Party and such disclosure mayonly be made in a manner consistent with the terms and conditions of this Agreement.2

f)This Agreement does not obligate the Parties to share any particular materials or information.g) If any Covered Materials become the subject of an application for an administrative or judicial orderseeking to require disclosure of such information or documents by a Party or under circumstanceswhere the information, if disclosed, would be unprotected by confidentiality obligations, that Partyshall give prompt written notice of the effort to require disclosure to all other Parties, such that anyParty has a timely opportunity to seek to protect the confidentiality of the Covered Materials. TheParties shall cooperate with one another to preserve the confidentiality of Covered Materials, butthe Party subject to an application for an order, subpoena or other legal process that providesnotice to the Parties need not pay for any of the costs incurred by any Party in seeking to protectthe confidentiality of the Covered Materials.h) The terms of this Agreement shall not apply to information or documents which are now in, orhereafter enter, the public domain, or are obtained from a Party pursuant to applicable discoveryprocedures, or are not otherwise protected from disclosure, except that it shall continue to apply toany Covered Materials disclosed wrongfully or in violation of this Agreement.i)Any unauthorized or accidental disclosure of Covered Materials by a Party to this Agreement shallnot result in a waiver of any Party’s claim of confidentiality or other protection as applicable to thedisclosed materials. No Party may waive any applicable privilege or other protection on behalf ofany other Party.j)The confidentiality obligations of this Agreement survive the termination of the Agreement.2. Identification and Return of Covered Materials.a) All Covered Materials that are exchanged pursuant to this Agreement should be marked ordesignated with language to the following effect: “Privileged and Confidential; Joint DefenseMaterials.”b) All correspondence or electronic or oral communications to which only the Parties are a party shallbe considered Covered Materials pursuant to this Agreement.c) Failure to designate Covered Materials in accordance with Paragraph 2(a) shall not in and of itselfrender any privilege or other protection inapplicable, but no claim of breach of duty, with respect tothe later disclosure of such materials, may be made by a disclosing Party that failed to properlydesignate Covered Materials under this Agreement.3

d) Any Party withdrawing from the Agreement for any reason, or upon the Agreement’s termination,shall immediately return all copies of materials marked pursuant to Paragraph 2(a) or reasonablybelieved to be covered under the terms of this Agreement to the disclosing Party upon writtenrequest by the disclosing Party and shall delete electronic copies of such materials to the extentfeasible.3. Inadmissibility. This Agreement shall not constitute or be used as evidence of any admission of law orfact against any Party, or as evidence of liability or responsibility for any claims, costs or damages. ThisAgreement shall not operate to release or affect any of the rights of any Party under state or federallaw.4. Effect on Insurance. The Parties do not intend for this Agreement to prejudice any Party with respectto its insurers. All of the provisions of this Agreement shall be interpreted so as not to conflict witheach Party’s obligations to its insurers.5. Representation. Each Party understands and acknowledges that it is represented exclusively by its ownCounsel in this matter and that this Agreement does not and will not create any attorney-clientrelationship with Counsel for any other Party.6. Conflicts. The Parties hereto understand and agree that nothing arising out of this Agreement shallgive rise to an assertion by either Party of a conflict of interest with regard to any Counsel, includingany additional or substitute counsel, to the Parties that are signatories to this Agreement.7. Withdrawal. Any Party may withdraw from this Agreement upon tendering written notice to all othersignatories to this Agreement, in which case this Agreement shall no longer be operative as to thewithdrawing Party but shall continue to protect all communications and information covered by theAgreement and disclosed to the withdrawing Party.8. Termination. This Agreement shall terminate upon: (i) execution of a full settlement of the Action; (ii)filing of a stipulation discontinuing or dismissing with prejudice the Action; (iii) entry of an orderdiscontinuing or dismissing with prejudice the Action; (iv) entry of a final, non-appealable judgment in4

the Action; or (v) execution of a subsequent agreement by the Parties regarding Covered Materials. Theconfidentiality obligations of this Agreement shall survive any termination.9. Authority. The individuals executing this Agreement on behalf of their respective clients represent thatthey have the authority to sign this Agreement and the authority to bind and commit their respectiveclients to the terms hereof.10. Modification. This Agreement may be amended only by a writing signed by the Parties.11. Headings. The headings contained in this Agreement are inserted solely for convenience and shall notbe deemed to define or amend any provision of this Agreement.12. Applicable Law. This Agreement shall be governed by the laws of the State ofwithout regard to conflict of laws principles.13. Counterparts. This Agreement may be executed in counterparts and each counterpart signature shallconstitute a duplicate original.5

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the datefirst written above.[Party 1]By:Title:Date:[Party 2]By:Title:Date:[Party 3]By:Title:Date:6