To obtain the privilege of communicating with others, a party must generally show three things: that the communication ended in a common defence, that the communications were made to support the objectives of that common defence, and that the privilege was not nullified elsewhere (i.e. that the common defenders do not share communication beyond their small group). For lawyers, this includes dealing with risks such as obligations to non-clients who are parties to the joint defence contract. It is recommended that any common defence agreement should include provisions that should not be used as a basis for attempting to disqualify another Council. The accused learned that the difficult path in the United States v. Krug.  In Krug, a written JDA was concluded by co-accused and their lawyers. After the agreement was implemented, the co-accused had a discussion on issues related to their case. The court found that the corridor discussions were not protected by the JDA and could be used as evidence against it during the trial. Common defence and common interest agreements can be effective instruments to promote client interests and reduce costs. The key is to do them properly so that they do not become the basis of litigation themselves. In the Tribunal`s view, the disclosure of the corridors did not serve the interests that justified the privilege.
For example, communications were made outside the presence of a lawyer (although, as the court found, the lawyers were nearby) and were not made for the purpose of providing legal advice. The court simply characterized these communications as “a discussion of having a JDA member pass on his independent and non-legal research to another JDA member, while finding that he had sent the same research to his lawyer.”  In addition, the court stated that “the mere fact that the communications took place among the co-accused who had joined a common defence agreement was not sufficient to protect the statements from disclosure.” Commercial transactions, disputes and disputes often involve several clients with concerted interests, but with different lawyers. Clients and their advisors often want to communicate with other clients and consultants without risking renouncing existing privileges or immunities.