Decision Reflects Misunderstanding of a Basic Privilege Concept

April 12, 2006

The attorney-client privilege does not protect historic facts from disclosure. A client must answer questions about what happened in the past. However, some courts misapply this basic rule to unjustifiably strip away the attorney-client privilege protection.

In Williams v. Sprint/United Management Co., No. 03-2200-JWL-DJW, 2006 U.S. Dist. LEXIS 4219, at *62 (D. Kan. Feb. 1, 2006), the court ordered Sprint to produce “non privileged underlying factual information” in otherwise privileged documents. This is wrong. The client’s communication of facts to the lawyer lies at the heart of the attorney-client privilege. While the privilege does not prevent the adversary from asking the client about historic facts, the adversary should not be given access to the factual portions of the client’s communications to a lawyer.

A number of courts have recently misapplied the basic “facts are never privileged” rule, so lawyers must be prepared to explain the privilege doctrine more carefully.