The absolute attorney-client privilege protects clients’ requests for legal advice and their lawyers’ legal advice in response. It protects facts only to the rare extent that disclosing them would somehow reveal the substance of those protected communications.
In Tallaksen v. Smith, defendant’s lawyer asserted privilege protection and instructed his client not to answer plaintiff’s lawyer’s deposition question “whether Defendant Smith had reviewed the documents produced in response” to one of plaintiff’s requests for production. Case No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 105005, at *5 (S.D. Cal. May 12, 2026). The court understandably explained that “asking Defendant Smith about the documents he reviewed did not, on its face, require him to divulge privileged communications with his counsel.” Id.
The court then properly quoted another opinion for a slightly more nuanced principle: “the facts underlying confidential attorney-client communications are the proper subject of discovery, ‘so long as the underlying facts can be proven without resort to the privileged materials.’ ” Id. at *6 (citation omitted).