Two items I posted today considered the format of page numbers and use of logos in headers and footers. And comments to this October 2009 post alluded to putting file names in the footer. So I got to thinking about other things that can go in headers and footers.
I’ve sometimes seen the notation “Confidential” in a footer, the aim presumably being to keep working drafts confidential. Less understandable are the notations “Privileged and Confidential” and “Attorney Work Product”—I don’t know what attorney-client privilege and the work-product doctrine have to do with contract drafting, but I’m prepared to have someone tell me.
Do you put anything else in headers and footers?
When a document is being negotiated, I typically insert in the footer on each page the word “DRAFT” followed by the date and time of day. When you are managing comments from several parties, sometimes using hand-marked pages, and turning multiple drafts each day, the date and time helps to identify the version (in case Word’s filename field code does not).
Also, on documents that have attachments (annexes, exhibits, schedules) of more than one page, I use a Word section break between each attachment and then insert the title of the attachment into the footer for that attachment. It makes it easy to find “Schedule F” by flipping through the pages and glancing at the footers. If you consistently use a particular Word paragraph style for the titles of the attachments (e.g., Word’s “Title” style), the footers can use the Word field code “StyleRef” to automatically pull the attachment titles into the footers.
I also see companies insert footers on each page indicating that the contract is “confidential and proprietary” to one party – even when the contract was the product of joint drafting. That seems nonsensical.
Ken:
I put revision numbers in our footers.
For forms, I put in a designation of “confidential to” and our company name because our form NDA requires that confidential information be designated as such.
I also put in a copyright notice, but I never object if someone takes it out.
Chris
Ken:
I forgot one: for certain forms, I have a little box that says “customer initials” on every page. This is because we had an unfortunate situation where the counter-party claimed that they never agreed to the pricing, which had been an attachment that was the past page of the agreement. This only works on form agreements that are pretty short, though.
Chris
I have seen footers that state “Not an Offer” and words to that effect.
With respect to references to “attorney-client privilege” and “attorney work product”, it makes no sense for those footers to appear on drafts that are exchanged between parties.
However, I can understand why the “attorney-client privilege” and “work product” footers would be used on drafts that are shared only with clients, or that are shared only within the law firm that is working on the draft or that have an attorneys working comments. Those drafts may include notes and comments that are not to be shared with others, or may include provisions that are considered for inclusion but are rejected before sending them to the other side.
If these footers are properly and consistently used, I imagine that it could help shield those drafts from discovery in later litigation. It might not otherwise be clear that those drafts could be subject to the privileges.
Ned: But in what context would it make sense to use the attorney-client privilege to shield comments in a draft?
And seeing as the work-product doctrine applies to materials prepared in anticipation of litigation, it’s hard to see how that might apply to comments in a draft.
Ken
For settlement agreements (including patent licenses with a settlement paragraph for past activities), I included in the header SUBJECT TO FRE 408 and a reference to the corresponding California civil code sections. Also, I will sometimes include the words “NON BINDING; DRAFT WITHOUT COMMITMENT” when there is a perceived risk.