The Attorney-Client Privilege Does Not Protect All Lawyer Changes to Draft Documents

August 29, 2018

Some courts erroneously fail to extend privilege protection to draft documents prepared by or revised by a lawyer before their final disclosure beyond the attorney-client relationship. Even courts that properly acknowledge the availability of privilege protection for such documents must examine the revisions’ primary purpose.

In Entrata, Inc. v. Yardi Systems, Inc., the court rejected defendant’s privilege claim for “a draft letter showing edits made by … Yardi’s Vice President and General Counsel.” Case No. 2:15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 104171, at *9 (D. Utah June 20, 2018). The court: (1) correctly noted that “[t]he mere fact that [defendant’s General Counsel] was involved with [the draft letter] does not automatically render it subject to attorney-client privilege protection”; (2) erroneously stated that “documents prepared to be sent to third parties, like [the letter], even when prepared by counsel, are generally not attorney-client privileged”; (3) correctly rejected privilege protection after “conclud[ing] that the types of edits made by [defendant’s General Counsel] constitute nothing more than simple editorial changes, which do not qualify for attorney-client privilege protection.” Id.

Some lawyers mistakenly assume that the privilege protects all of their changes to clients’ draft documents. However, every withheld change in such draft documents must meet the “primary purpose” test to deserve privilege protection. Typographical and stylistic revisions generally do not deserve privilege protection.