Sharpnack, S.J.
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Price argues that the Browns and the Trust’s claims cannot go forward because the information and materials Brown and Price shared pursuant to the JDA [Joint Defense Agreement] to defend against the indictment “could never be separated from matters relevant to prosecution of the civil claims.” Appellants’ Br. p. 18. He thus concludes that the terms of the JDA and the sharing of information under the JDA bar the Browns and the Trust’s claims, and “the only appropriate remedy available to Price is dismissal” of their claims. Id. at 20.
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In the JDA, Brown and Price did not explicitly waive their right to sue one another for alleged claims arising from their business relationships. To the contrary, the clear and unambiguous language of the JDA contemplates that Brown and Price might become adversaries as to the subject matter reflected in their shared information. The JDA provides, in relevant part:
The joint defense privilege described above and recognized by this Agreement shall not be destroyed or impaired as to any Joint Defense Materials exchanged pursuant to this Agreement if any adversary positions shall subsequently arise between some or all of the Parties and regardless of whether the joint defense privilege becomes inapplicable after the emergence of adversary positions among Parties or this Agreement is terminated for any reason.
Appellants’ App. p. 155.
The JDA further provides, “The exchange of Joint Defense Materials pursuant to this Agreement shall not preclude any of the Parties from pursuing subject matters reflected in [the Materials] (even as against other Parties), so long as all applicable privileges or protections are preserved.” Id. at 157.
Thus, according to the plain and ordinary meaning of the JDA’s terms, the contract does not bar Brown, Charlotte, and the Trust’s claims against Price. What the JDA does establish is that Brown and Price cannot use the materials shared pursuant to the JDA against each other, and that the exchange of materials does not limit any privileges or work-product protections that would otherwise apply. See id. at 154 (“any shared or exchanged information shall not be used for any purpose other than with respect to this litigation”); 157 (even if parties adopt adversarial positions, “all applicable privileges or protections from disclosure” must be preserved). Brown, Charlotte, and the Trust conceded this point to the trial court. Tr. p. 14 (“If later [Brown] tries to use any communications that Price has searched [sic] privilege then certainly this Court could I believe bar him for [sic] using those privileged communications or testifying about any privileged communications”).
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In any event, Price’s reading of Analytica, and his concerns about the difficulties in trying this case, are contradicted by Indiana precedent. Claims of privilege cannot be used as a general bar to all inquiry or proof. Instead, the party seeking to assert a privilege has the burden to allege and prove the applicability of the privilege as to each question asked or document sought. TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 994 (Ind. 2014); see Indiana Trial Rule 26(B)(5)(a) (a party asserting a claim of privilege “shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed”). Privileged communications are protected, but relevant facts are not. See Owens v. Best Beers of Bloomington, Inc., 648 N.E.2d 699, 704 (Ind. Ct. App. 1995) (defendant could not prevent the disclosure of a compensation arrangement between itself and plaintiff merely because it was discussed in the presence of defendant’s attorney).
Further, there is nothing to show what evidence or communications are at issue, or that Brown, Charlotte, and the Trust could not prove their claims without disclosing communications that are privileged under the JDA. Brown and Price agreed that “any materials or information obtained from a source other than one of the other parties” could be shared with other persons without violating the JDA or waiving the privileges established by the JDA as to other communications. Appellants’ App. at 156-57.
Specific claims of privilege will need to be resolved as they are encountered in discovery or at trial.
Baker, J., and Riley, J., concur.