Historical facts do not deserve protection under either the attorney-client privilege or the work product doctrine. In the work product context, courts must sometimes undertake a subtle analysis.
In Pastrana v. Local 9509, Communications Workers of America, Civ. No. 06cv1779 W (AJB), 2007 U.S. Dist. LEXIS 73219 (S.D. Cal. Sept. 28, 2007), the court dealt with the discoverability of historical facts uncovered by lawyers during an investigation. The court properly held that the work product doctrine protected documents in which the lawyers have memorialized such facts. However, the court then noted that lawyers cannot withhold such facts if an adversary seeks them in another way. As the court explained, the work product doctrine “furnishes no shield against discovery, by interrogatories or by deposition, of the facts that the adverse party’s lawyer has learned, or the person from whom he has learned such facts, or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery.” Id. at *14-15. Because interrogatories seek information possessed by the client and the client’s lawyer, the answers normally must include facts the lawyer has obtained during an investigation — even though documents reflecting those facts can be withheld during a document production.
Applying the “facts are never protected” principle can be among the most complicated tasks courts undertake in the work product context.