The Trouble with Drafts: Part I

August 30, 2017

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs.  For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it.  Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients’ and lawyers’ input. 

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications.  After correctly explaining that “drafts of memoranda prepared for a client are protected,” the court also indicated that “[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged.  Submission of the document to the third party removes any cloak of privilege.”  Id. at *286 (alteration in original; citation omitted).  The court quoted another District of Kansas case, which was even more blunt.  Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) (“When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity.” (emphasis added)).  Another court even held that “handwritten communications between [a corporate client’s employees] and its attorneys” on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version.  In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense.  For instance, judges themselves prepare draft opinions, but their disclosure of an opinion’s final version does not strip away confidentiality from their in-progress drafts.  Next week’s Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.