Sending an Adversary a Draft Complaint Does Not Waive Privilege or Work Product Protection

Would-be litigants sometimes send a draft complaint to the would-be adversary — either to deter their bothersome conduct or to spur settlement talks. That scenario frequently raises defamation issues — with states taking varying positions on whether such pre-litigation statements deserve the normal defamation immunity that actual pleadings deserve.

In Cook v. Trimble (In re Cragg), No. A23-0309, 2023 Minn. App. LEXIS 410 (Minn. Ct. App. Nov. 6, 2023), the court dealt with another issue. The would-be defendant (a Minnesota Vikings player) argued that the would-be plaintiff’s forwarding to a newspaper reporter “a copy of the final personal-injury complaint that had not yet been served or filed” waived the plaintiff’s privilege and work product protections. Id. at *3. The would-be defendant moved to compel discovery of plaintiff’s investigation materials, communications with her lawyer about the complaint’s basis, etc. The court understandably explained that the draft complaint was not a privileged communication, and noted that it was “unaware of any authority supporting the proposition that the pre-filing sharing of a final pleading can result in a waiver of the attorney-client privilege or work-product protection.” Id. at *10.

Presumably the outcome might have been different if the would-be plaintiff had shared the underlying investigation report, an analysis by her lawyer, etc.

Published .