Using the Attorney-Client Privilege to Protect Drafts of SEC Filings

mintz_logoMintz Levin published a client alert about the Roth v. Aon case I mentioned a few days ago: Draft SEC Filings Can Be Protected From Discovery.

The lawyers at Mintz have these recommendations:

  • Disclosures that involve legal judgments, discussions of pending litigation, and business matters that the company must disclose for compliance purposes should be fully vetted with both in-house and outside counsel;
  • Though SEC filings eventually become part of the public domain, under the right circumstances, the attorney-client privilege may cover drafts of such filings.
  • Despite the involvement of some non-legal staff in the drafting process, the privilege may extend to teams within the company that work with counsel to make legal decisions concerning disclosures.
  • As a matter of best practices, company procedures should mandate that all drafts of SEC filings and communications concerning these filings that may implicate the attorney-client privilege be labeled “Draft” and “Attorney-Client Privileged.”
  • Internal communications seeking legal advice or opinion about disclosures should expressly state such intentions in the subject line or first sentence of an email.