Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168

Charles Brown executed a charitable remainder unitrust in 1995; in 2000 he named his lawyer David E. Price as trustee.
The DOJ indicted Brown in 2006 and added Price in 2007; Brown and Price entered a Joint Defense Agreement (JDA) in 2008 to share privileged materials while defending the criminal charges.
The JDA stated exchanged materials were privileged, could not be used against a co-party, and that the privilege would survive if adversary positions later arose between the signatories.
While the criminal case was pending, Brown terminated Price as trustee (April 2009) and sued Price (breach of trust, conversion, malpractice, fiduciary breach); Price filed a trust-accounting action and the matters were consolidated.
Price moved for summary judgment, arguing the JDA and shared privileged materials barred the Browns’ civil claims entirely; the trial court denied summary judgment and Price pursued interlocutory appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Price is entitled to judgment as a matter of law because the JDA/shared privileged materials preclude the Browns’ civil claims	Brown/Trust: their claims may proceed; they accept that privileged JDA materials cannot be used against Price but contend nonprivileged evidence can support claims	Price: sharing privileged information under the JDA prevents the Browns from pursuing civil claims because necessary proof would inevitably rely on privileged communications	The JDA does not bar the claims; it preserves privilege for exchanged materials and forbids use of those materials against a party, but does not waive the right to sue or automatically preclude discovery of nonprivileged evidence; privilege issues are to be raised and resolved as they arise

United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. 2007) (explains common interest privilege as extension of attorney-client privilege)
Hunton & Williams v. U.S. Dep’t of Justice, 590 F.3d 272 (4th Cir. 2010) (common interest privilege permits sharing to further joint legal defense)
United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979) (recognition of the common interest doctrine)
In re Teleglobe Commc’ns Corp., 493 F.3d 345 (3d Cir. 2007) (scope of privilege extends to civil, criminal, and transactional contexts)
Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983) (discusses limits of disclosure and issues arising when privileged information affects subsequent proceedings)
John Morrell & Co. v. Local Union 304A of United Food & Commercial Workers, 913 F.2d 544 (8th Cir. 1990) (privilege cannot be waived without consent of all parties to the common defense)
TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014) (party asserting privilege must identify withheld materials and prove applicability)
Owens v. Best Beers of Bloomington, Inc., 648 N.E.2d 699 (Ind. Ct. App. 1995) (privileged communications are protected but underlying relevant facts are discoverable)