The attorney-client privilege protects communications between clients and their lawyers, not historical facts. Some courts misunderstand the real-world application of this basic principle, but other courts get it right.
In Canarelli v. Eighth Judicial District Court, 464 P.3d 114 (Nev. 2020), the court analyzed two aspects of the privilege. First, the court held that the attorney-client privilege can protect clients’ notes even if the client did not physically deliver those notes to her lawyer – as long as the notes reflect what the client and the lawyer later discussed. Additionally, “we emphasize that the party asserting the privilege does not have to prove that the client spoke each and every word written in his or her notes to counsel verbatim.” Id. at 120-21. Second, and perhaps more importantly, the court held that the lower court had “clearly abused its discretion to the extent it found that the factual information contained in the [withheld] documents was not subject to the attorney-client privilege.” Id. at 121. Acknowledging that the “documents contain factual information,” the court properly held that “facts communicated in order to obtain legal advice do not fall outside the privilege’s protections.” Id.
Historical facts do not deserve privilege protection. But the adversary must discover those facts the old-fashioned way — through other discovery, rather than by intruding into communications between clients and their lawyers.