Are Drafts of Ultimately Disclosed Documents Protected by Either the Attorney-Client Privilege or the Work-Product Doctrine?

January 9, 2002

Courts agree that documents intended to be ultimately revealed to the public deserve no attorney-client privilege or work product doctrine protection. However, courts take different views about drafts of such documents. Some courts rule that even the drafts of such documents do not deserve protection, because the client does not intend to maintain the confidentiality of the ultimate product of the drafting process.

Courts that take a more logical view tend to protect drafts that reflect a lawyer’s input, while obviously not protecting the final document. The recent decision in Judicial Watch, Inc. v. U.S. Department of Commerce, 201 F.R.D. 265 (D.D.C. 2001)(07/06/01) takes this approach.

Lawyers should be familiar with the pertinent court’s approach to drafts. Lawyers and their clients could be unpleasantly surprised if a court takes the restrictive (and illogical) approach ordering the production of preliminary drafts that reflect a lawyer’s direct input.