The Trouble with Drafts: Part II

September 6, 2017

Last week’s Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties.  In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017).

On the same day, the Eastern District of Louisiana dealt with this issue.  In SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: “A”(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017), the court rejected a party’s effort to discover preliminary drafts of an incident report whose final version was ultimately made public.  The court noted that the client and his lawyer “did not intend that their drafts and analysis would be subject to disclosure.”  Id. at *25.  The court then emphasized an obvious point some courts seemingly overlook – “the argument raised by [the party seeking discovery] here would result in disclosure of every draft of a pleading, brief, or affidavit that is exchanged between counsel and client merely because such drafts concern facts and the final draft is made public.”  Id.

The SCF Waxler Marine court’s refreshingly logical approach should carry the day in every court.  But to be safe, clients and their lawyers should carefully document (1) both of their roles in drafting documents for ultimate disclosure; (2) the lawyer’s legal input as reflecting legal advice, rather than business, stylistic, or grammatical advice; and (3) their intent to maintain their drafting process’s confidentiality until they agree on a final version to be disclosed.

The Trouble with Drafts: Part I