3rd Parties Break Privilege
Even & Especially Lawyers
Lawyers for 2 different sides negotiate a contract via back & forth emails. Each side makes comments & proposed changes on the drafts.
The MANY different versions of drafts.
Are the drafts protected by privilege?
The other side / opposing counsel sent the drafts - Not privileged
During a back and forth negotiation, except in rare situations, opposing counsel’s presence in a correspondence constitutes a 3rd party that breaks privilege.
2. The other side sent their most recent draft which was subsequently distributed internally between company attorneys who added their comments to that draft; the draft was kept company confidential - Privileged or Partially privileged
This draft would be protected by privilege or the internal comments from attorneys would at least get redacted before the draft could be produced. Legal work, review, advice, etc on a draft from the other side is protected by privilege, even if the draft itself (without the lawyers’ comments) is not protected by privilege anymore.
Email correspondence attaching the same drafts:
If the email includes opposing counsel: Not privileged
If the email is shared internally with attorneys and kept company confidential : Privileged