Court Explains What “Facts Are Never Privileged” Means

August 10, 2016

Historical facts never deserve privilege protection. Something either happened or it didn’t happen. But some litigants erroneously point to this axiom in seeking to discover factual portions of clients’ privileged communications to their lawyers, and vice versa.

In Toyo Tire & Rubber Co. v. Atturo Tire Corp., defendant sought emails between Toyo and its lawyers, arguing “that the emails it seeks concerned underlying facts, which are not protected by the attorney-client privilege.” Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016). The court correctly explained that “[t]he vast majority of communications between attorneys and clients contain some mixture of fact and legal opinion” — noting that “the relevant inquiry is whether the documents or communications sought were transmitted for the purpose of obtaining legal advice.” Id. at *8-9. The court rejected defendant’s argument, and found the withheld documents privileged after reviewing them in camera. The court concluded by explaining the practical consequences of this universally accepted principle: “the underlying facts communicated between an attorney and a client can be discovered through depositions or other discovery techniques.” Id. at *6.

It is ironic that some lawyers and even courts think that clients’ recitations of historical facts to their lawyers do not deserve privilege protection. The privilege exists to assure absolute privacy for such communications, so such recitations actually represent the most protected of all communications.