It is clear that facts are never privileged. Does this mean that the factual portion of an otherwise privileged communication must be produced?
Courts take different approaches. Ironically, two Texas decisions issued one day apart highlight the debate. In Myers v. City of Highland Village, 212 F.R.D. 324, 327 (E.D. Tex. 2003) the court held that the first eight paragraphs of an otherwise privileged memo contain “underlying facts” that are not protected and therefore must be produced. One day later, a Texas state court issued In re Exxon Mobil Corp., 97 S.W.3d 353 (Tex. Ct. App. 2003). The court explained that the privilege “attaches to the complete communication between attorney and client, including both legal advice and factual information.” Id. at 357. The court acknowledged that facts did not deserve privilege protection, but noted that the adversary could discover the underlying facts through other discovery means.
The juxtaposition of cases like these show how complicated attorney-client privilege issues can become, and how important it is for lawyers to familiarize themselves with this and other judicial debates about the privilege.