The Roth Decision

Just in time for annual reporting season, a recent decision by the Federal District Court for the Northern District of Illinois provides guidance on how the attorney-client privilege may apply to drafts of Securities and Exchange Commission (SEC) filings.

In Roth v. AON Corp.,1 a company inadvertently produced emails and draft documents related to disclosures made in that company’s annual Form 10-K filing during discovery in a class action suit.2 An internal company team, whose members included the company’s deputy general counsel, exchanged these materials while working on draft disclosures of an operational matter.3 Opposing counsel argued that the attorney-client privilege did not apply to the subject documents because:

*they involved business and not legal advice;

*the email in question did not “specifically state that it [sought] legal advice”; and

*the privilege could not protect drafts of documents that would eventually become public.

Despite these arguments, the court held that the privilege protected these documents from disclosure.4 Because of the important reminders this case delivers about the scope of the attorney-client privilege, the court’s reasoning merits further discussion.

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