Although the attorney-client privilege does not protect historical facts, any facts “created” during or in anticipation of litigation can present a difficult analysis.
In Gilead Sciences, Inc. v. Merck & Co., Case No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 3263 (N.D. Cal. Jan. 11, 2016), the court handling a patent case assessed defendant’s opinion work product claim for the results of an experiment a scientist undertook with a protocol provided by its subsidiary’s scientist (and also its lawyer). Plaintiff argued that “it seeks discovery ‘only into the scientific facts surrounding the development of the protocol,'” rather than defendant’s subsidiary’s scientist/lawyer’s “legal opinions, thought processes or legal explanations for his actions regarding the protocol.” Id. at *12-13 (internal citation omitted). But the court denied plaintiff’s discovery request, concluding that “adjustments [the scientist/lawyer] made to the protocol would necessarily have been done in consideration of its purpose in countering [the plaintiff’s] litigation position.” Id. at *13. The court then drove the point home again: “the scientific instruction necessarily reflects the attorney’s strategic thinking about issues likely to arise down the road in litigation . . . [and the results therefore] remain protected opinion work product because the non-legal and legal thinking are inextricably intertwined in service of the litigation.” Id. at *14-15.
Lawyers should be prepared to rebut an adversary’s argument that it merely seeks “facts” that are created in connection with litigation.