Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and sometimes assistance in drafting. How do courts tell them apart?
In Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018), Judge Castel acknowledged these two basic principles. The court then explained that "[p]reexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer." Id. at *4-5. The court also recognized that clients might ask for abstract legal advice, but "[t]o save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material" about which the clients seek advice. Id. at *5 (footnote omitted). Those documents can deserve privilege protection -- "[a]ssuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice." Id. The court also explained how it would differentiate between unprotected preexisting documents and protected draft documents: "[t]he Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations." Id. at *8. The court then addressed possible privilege protection for each withheld document one by one.
Given this well-settled law and judicial approach, lawyers should educate their clients who send them draft documents to describe them as drafts, and to explicitly ask for legal advice if that is what they seek – so courts' "in camera" review will reach the right result.