Does the Attorney-Client Privilege Protect Preliminary Drafts of Documents That the Client Ultimately Intends to Disclose?

August 12, 2009

Because the attorney-client privilege “evaporates” at the moment a client intends to disclose a document that would otherwise deserve privilege protection, final to-be-disclosed draft documents do not deserve privilege protection. However, some courts erroneously apply this concept to preliminary drafts of documents — if the client intends to disclose the final draft.

In In re Pappas, Case No. 08-10949, 2009 Bankr. LEXIS 1394, at *1-2 (Bankr. D. Del. June 3, 2009), the court “determined that drafts of documents prepared for eventual release to third parties . . . are not protected by the attorney work product doctrine or the attorney-client privilege.” Although that court stated that “a majority of courts” apply this doctrine even to “‘[p]reliminary'” drafts of documents ultimately intended to be disclosed, most courts actually take the opposite approach. Id. at *2 (citation omitted). See, e.g., Loftin v. Bande, Civ. A. No. 08-mc-487 (JDB), 2009 U.S. Dist. LEXIS 50247, at *10 (D.D.C. June 16, 2009) (explaining that “a draft is protected under the attorney-privilege if the draft itself contains protected confidential communications from the client or the attorney” and “receives attorney work product protection if it is prepared by an attorney ‘in anticipation of litigation'” (citation omitted)); SEC v. Teo, Civ. A. No. 04-1815 (SDW), 2009 U.S. Dist. LEXIS 49537 (D.N.J. June 11, 2009) (holding that the privilege can protect drafts of documents, other than portions ultimately disclosed to third parties).

A “drafts are not privileged” principle makes sense for the final draft about to be disclosed, but makes no sense when applied to preliminary drafts that reflect a lawyer’s input and which are not ultimately disclosed outside the attorney-client relationship.