Court Recognizes that Disclosing Facts to the Government Does not Waive Privilege Protection for Related Communications

March 14, 2012

The attorney-client privilege protects communications, not historical facts. And because the privilege’s owner waives that protection only by disclosing (or relying upon) privileged communications, disclosing non-protected historical facts should not cause a waiver.

Courts have applied this general principle when companies provide historical facts to the government. In Escue v. Sequent, Inc., Civ. A. No. 2:09-cv-765, 2012 U.S. Dist. LEXIS 9949 (S.D. Ohio Jan. 25, 2012), defendant company Sequent investigated an allegedly illegal transfer of trust funds to another account. After its investigation, the company’s lawyer sent a memorandum to the Department of Labor “detailing what had occurred” and “explain[ing] how he learned of the improper transaction and what steps Sequent took to correct it.” Id. at *24-25. Plaintiff argued that the lawyer’s memorandum “waives Sequent’s privilege with respect to all attorney-client communications regarding the criminal investigation.” Id. at *25. The court rejected plaintiff’s argument, explaining that “the disclosures did not reveal any particulars concerning the advice provided by counsel.” Id. Instead, the memorandum “contain[ed] a recitation of the facts counsel learned from the investigation.” Id. The court also noted that plaintiff “has been permitted to question witnesses with actual knowledge of the January 2006 transfer of funds.” Id.

Courts properly applying attorney-client privilege waiver principles correctly conclude that even a lawyer’s disclosure of historical facts to an adversarial government does not waive privilege protection for related communications.