Historical facts do not deserve privilege protection. However, some courts erroneously strip privilege protection from (1) a client’s communication of historical facts to a lawyer, about which the client seeks legal advice; and (2) a lawyer’s communication of historical facts to a client, where the lawyer infuses those facts with his or her advice instead of simply acting as a conduit of such facts from a third party. Fortunately, some courts properly apply the axiom that facts do not deserve privilege protection.
In Hanson v. First National Bank, Civ. A. No. 5:10‑0906, 2011 U.S. Dist. LEXIS 145855, at *2 (S.D. W. Va. Dec. 19, 2011), a plaintiff suing a company deposed the board of directors chairman, who testified that he had a conversation with the corporation’s lawyer “that led me to ask for [a director’s] resignation.” The plaintiff filed a motion seeking the historical facts that the company’s lawyer conveyed during that conversation. The court denied plaintiff’s motion. Explaining that the lawyer was not a “‘mere conduit’ of information obtained from independent sources,” the court held that disclosing the communication “would directly reveal the substance of confidential, attorney‑client communications” between the lawyer and the corporate client. Id. at *4. The court noted that the plaintiff “is not prevented from learning the facts . . . from other witnesses and documents in this case,” but could not force disclosure of any part of the company’s lawyer’s communication to the chairman. Id. at *5-6.
Companies and their lawyers must be prepared to explain that the absence of privilege protection for historical facts does not normally permit disclosure of the factual portion of communications between clients and their lawyers. Although the issue did not come up in the Hanson case, companies must also recognize the risk of relying on the existence (rather than the substance) of a privileged communication – which can trigger an implied waiver.