Courts’ analyses of drafts sent to lawyers and others for review creates as much confusion as clarity. What if the lawyer’s changes are stylistic and grammatical rather than legal? How can changes in a draft intended to be revealed outside the attorney-client relationship ever meet the “expectation of confidentiality” standard?
In Freeport-McMoran Sulphur, LLC v. Mike Mullen Energy Equipment Resource, Inc., Civ. A. No. 03-1496 c/w 03-1664 Section: “A” (4), 2004 U.S. Dist. LEXIS 10197 (E.D. La. June 3, 2004), the court dealt with a draft press release sent to a lawyer and others for review. The court first noted that “ [a] document sent from one corporate officer to another is not privileged simply because a copy is sent to counsel.” Id. at *24. The court also noted that “a press release, by its very nature, is meant for the public eye and is not privileged.” Id. Finally, the court found that “ [t]here is no indication that in forwarding this draft press release” to a number of people – including a lawyer – the author was “seeking legal advice, as opposed to, for example, strategic marketing advice.” Id. The court therefore found the draft press release unprotected.
If a company needs legal advice about a press release, the transmittal correspondence to its lawyer should reflect it – or else the drafts may be subject to discovery.