Court Offers Good Privilege News for Draft Form 10-K Filings

April 29, 2015

Courts disagree about the attorney-client privilege protection’s applicability to draft documents whose final version will be publicly disclosed. Public companies naturally worry about this issue’s impact on their draft securities filings.

In Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015), a whistleblower plaintiff alleged that Unilife’s 2011 Form 10-K report contained false and misleading statements. He sought discovery of Unilife’s draft 10-Ks and company lawyers’ communications to and from nonlawyer consultants “concerning the [drafts’] contents, style and ‘wordsmithing.'” Id. at *5. The court first found that the consultants were the “functional equivalent” of employees — refreshingly acknowledging that “[a] trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task.” Id. at *7-8. The court then held that the draft 10-Ks deserved privilege protection — citing an earlier decision protecting 10-Ks that contained “legal advice and communications between a law firm and its client . . . even though the final version of the Form 10-K was publicly filed, because the drafts contained information not included in the final version.” Id. at *9-10 (citing In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)).

Although many decisions seem hostile to corporations’ privilege claims, some courts’ analyses provide good news.