Does the Attorney-Client Privilege Protect the Date that a Lawyer and Client Meet?

December 29, 2004

The attorney-client privilege protects the substance of communications between lawyers and clients relating to the request for, or the rendering of legal advice. Litigants sometimes seek protection for information that might provide an adversary insight into the substance of such communications, but those efforts usually fail.

In In re Application for Subpoena to Kroll, 224 F.R.D. 326, 328 (E.D.N.Y. 2004), a non-party lawyer receiving a subpoena in a patent infringement case argued that the privilege protected the date he first met with his client “because its disclosure may shed light on his clients’ date of invention” – which was an issue in the case. The court rejected this argument, holding that “[t]he attorney-client privilege protects confidential communications, not information that may have an adverse affect [sic] on the client. As such, the identification of clients or meetings therewith, does not disclose nor imply a confidential communication.” Id. at 329.

Those involved in analyzing or litigating the attorney-client privilege protection should remember that the privilege generally protects only communications, not facts about those communications.