Upjohn v. United States, 449 U.S. 383 (1981), articulated the widely accepted standard for privilege protection in the corporate setting. But some litigants who rely on that famous case’s statement that the privilege extends “only to communications and not to facts” deliberately or mistakenly miss the mark. Id. at 395.
In Johnson v. Larimer County Sheriff John Feyen, Civ. A. No. 24-cv-00394-NYW-NRN, 2025 U.S. Dist. LEXIS 177079 (D. Colo. Sept. 10, 2025), a former county deputy sheriff claiming that her employer failed to accommodate her hearing disability sought to discover notes prepared by the county’s lawyer who investigated her claim. Plaintiff pointed to that Upjohn excerpt in contending that the county lawyer’s “investigatory notes likely contain mostly factual information” and therefore would “be discoverable, with appropriate redactions for mental impressions of counsel.” Id. at *7. Of course, the court rejected plaintiff’s argument — noting that the sentence “was making the point that a witness may know a fact, and be required to disclose that fact, despite having previously disclosed the same fact to an attorney.” Id.
Because plaintiff’s lawyer could obtain facts by deposing the witnesses, she could not “seek[] to uncover the specific communications from the client to the attorney reflected in the notes.” Id. at *8. It’s refreshing when a court gets it right.