Privilege and Waiver — Drafts of Disclosure Documents — Public Relations Firms

Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552 (D.S.C. May 8, 2008).

Drafts of Disclosure Documents. The opinion explores the split in the case law concerning whether drafts of documents intended ultimately for public disclosure are unprivileged on the theory that a statement or communication made by a client to his attorney with the intent and purpose that it be communicated to others is not privileged. The primary document at issue was a Power Point presentation intended for presentation to the FDA but sent to counsel for counsel’s input first. The opinion collects and analyzes the conflicting cases, some of which find complete waiver; other find no waiver and yet others come out in between the extremes. Governing New York law was unclear. Special Master Capra concluded that the last position is correct:

Applying the Schenet/Schlegel view, I find first that the draft powerpoint presentation was referred to Mr. Bailey with the implicit request for legal advice. Therefore, the portions of the draft powerpoint that were not disclosed in the final draft may be redacted. The portions that were ultimately revealed to the FDA are not privileged. Defendant must therefore produce the draft, but may make redactions in accordance with this opinion and order.

P.R. Firms. The opinion also collects and explores the division in the case law concerning whether or when communications with public relations firms are privileged. It ultimately declines to accord privilege to the communications at issue.

As a future resource, the opinion is worth reading and bookmarking.

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