Courts Agree That Historical Facts Do Not Deserve Privilege Protection, But What If Those Come From A Lawyer?

April 29, 2020

Historical facts do not deserve privilege protection – something either happened or it didn’t happen. The attorney-client privilege protects communications about those facts. But surprisingly few courts have dealt with what would seem to be a common scenario – clients asked during a deposition about historical facts they obtained only from their lawyer.

In Ex Parte Willimon, No. 1180439, 2020 Ala. LEXIS 15, at *18 (Ala. Jan. 24, 2020), a witness unsuccessfully sought to quash a deposition notice in litigation about a church’s alleged sexual abuse – arguing that “[a]ny knowledge I have would be based on information provided to me by my attorney.” The court rejected the witness’s motion – which it criticized as “premised on an assumption that all information she received from her attorney is automatically protected by the attorney-client privilege.” Id. at *20. The court bluntly stated that “[t]hat is not so” — because “[t]he privilege protects communications between an attorney and client, not necessarily all information or documents transmitted by or accompanying those communications.” Id.

At first blush, this reflexive approach makes sense. But in some circumstances it does not. For instance, suppose that a plaintiff has sued a corporation for selling a defective product that caused several deaths. The CEO’s prior knowledge of those deaths might support a punitive damage claim. But what if the CEO was unaware of any deaths until learning about them from her lawyer while preparing for her deposition. During her deposition, the CEO cannot deny having heard of the deaths – but might risk waiver by explaining that she heard about them only from her lawyer. Some savvy courts have allowed deponents’ lawyers to set deposition ground rules allowing the deponents to exclude from their answers any historical information they learned solely from their lawyers. Most courts require deponents to answer, thus requiring deponents’ lawyers to muddle through an explanation of how the deponent learned those historical facts. Corporations and their lawyers should prepare for such scenarios.