Several courts have adopted a nonsensical principle that, as one
court put it, "[w]hen documents are prepared for dissemination
to third parties, neither the document itself, nor preliminary
drafts, are entitled to immunity." Burton v. R.J. Reynolds
Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997). Stated
bluntly, that does not make sense. But even some circuit courts
have adopted that curious approach.
In Taylor v. County of San Bernardino, the court
articulated an odd variation on this theme: "[a]s to drafts of
documents, the final versions of which may have been made public or
provided to third parties, the privilege is not waived if the final
version of the document is merely disclosed and not used
offensively during the course of litigation." No.
5:21-cv-02088-JGB-SHK, 2024 U.S. Dist. LEXIS 188487, at *17-18
(C.D. Cal. Oct. 16, 2024). Under this outlandish approach, a
plaintiff offensively seeking to enforce a contract might have to
disclose earlier private
