In Smith v. Unilife Corp., No. 13-5101, 2015 WL 667432 (E.D. Pa. Feb. 13, 2015), the court held that communications between the company and non-lawyer consultants regarding drafts of SEC Form 10-K reports were privileged under the functional equivalent doctrine.  In this case, the CEO and in-house counsel of Unilife conferred with two third-party non-lawyer consultants concerning the contents, style and “wordsmithing” of draft SEC filings.  Applying the more lenient standard for the functional equivalent doctrine adopted in Flonase Antitrust Litigation, 879 F.Supp.2d 454 (E.D. Pa. 2012), the court found that the consultants were the functional equivalents of company employees where they had been hired by the company for the purpose of assisting the corporation in securing legal advice or making legal decisions, noting that the court would not second-guess a corporate decision to rely on an independent consultant to accomplish a specific task or make recommendations to the CEO or general counsel.  The court also held that drafts of the Form 10-K’s were privileged and not discoverable because a review of the drafts would call for disclosure of communications with counsel, thus invading the privilege.  The court cited with approval Roth v. Aon, 254 F.R.D. 538 (N.D. Ill. 2009), in which the court concluded that an email from Aon’s CFO to its CEO and general counsel regarding a draft 10-K was privileged because “Form 10-K requires extremely detailed financial, legal and structural information” and that the “determination of what information should be disclosed for compliance is not merely a business operation, but a legal concern.”