Courts Wrestle With the “Facts” vs. “Communications” Dilemma: Part I

March 30, 2022

In all or nearly all circumstances, historical facts do not deserve privilege protection – something either happened or it didn’t happen. The privilege can protect communications about those historical facts. To make matters more complicated, the fact that a client and her lawyer communicated likewise does not deserve privilege protection, except in rare circumstances. Applying these axiomatic rules can be difficult.

In Valentin v. Salson Logistics, Inc., the court held that the privilege did not protect “when and with whom [client] consulted for the general purpose of discussing possible legal remedies.” Case No. 8:20-cv-2741-VMC-CPT, 2022 U.S. Dist. LEXIS 3824, at *5 (M.D. Fla. Jan. 7, 2022) (citation omitted). In applying the same nuanced principle to the plaintiff’s visit to a medical provider, the court cited an earlier case in distinguishing between: (1) the non-privileged “underlying fact of whether [a client] saw a particular physician”; and (2) the privilege-protected fact of “whether [a client] saw the physician at [the client’s] attorney’s request.” Id. at *4 (citation omitted). The court ultimately held that “the fact that her attorney referred her to particular medical providers is protected by attorney-client privilege.” Id.

It can be difficult to distinguish between non-privileged logistical information about a communication and the explicit or implicit privileged content of such a communication. Next week’s Privilege Point describes another court’s attempt to draw these lines about two weeks later.