Not surprisingly, attorney-client privilege protection evaporates once a client and her lawyer agree that a document can be disclosed to outsiders -- even before it is disclosed. But some courts have inexplicably applied this principle to preliminary drafts. See, e.g., Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. Feb. 3, 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity.").
Fortunately, most courts take a more common-sense approach. In Berkley Custom Insurance Managers v. York Risk Services Group, Inc., Judge Liman cited an earlier Second Circuit case in logically concluding that the intent to disclose the final version of a document "provides 'no basis' . . . for inferring that [the privilege holder] did not intend that the drafts – which reflect its confidential requests for legal advice and were not distributed – to be confidential." No. 18-cv-9297 (LJL), 2020 U.S. Dist. LEXIS 165618, at *14 (S.D.N.Y. Sept. 10, 2020) (alterations in original).
Protecting such preliminary drafts as privileged is the only approach that makes sense, as long as they reflect lawyers' legal input -- rather than grammatical corrections, stylistic suggestions, etc. It would be tempting to ask judges taking the other approach to hand over preliminary drafts of their opinions -- because they intend to publicly disseminate the final version.
Published January 13, 2021.