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Courts Continue to Struggle with the Application of the Attorney-Client Privilege to Purely Factual Communications

The attorney-client privilege does not protect facts from discovery. The privilege, however, does apply with full vigor to a client’s communication of facts to his or her lawyer. Courts have struggled with that important distinction. A recent decision from the United States Court of Federal Claims – Christofferson v. United States, 78 Fed. Cl. 810 (2007) – provides an example.

The Christofferson plaintiffs sought overtime pay from their former employer, the U.S. Census Bureau. After extended litigation, the parties reached a tentative settlement agreement pursuant to which the parties agreed to place the thousands of plaintiffs into categories, and then have the Bureau resolve each category’s claims in a prescribed manner. Counsel for the plaintiffs and the Bureau jointly developed a questionnaire to gather information needed to categorize the plaintiffs. The questionnaire sought purely factual information from the plaintiffs.

Plaintiffs’ counsel sent the questionnaire to the plaintiffs under a cover letter that included a “Confidential Attorney-Client Communication” header. The plaintiffs returned the questionnaire, which had to be verified under penalties of perjury, to the plaintiffs’ lawyers. The plaintiffs’ lawyers then took the information from the questionnaires, created a database from that information, and provided the database to the Bureau.

Not satisfied with receiving only the database, the Bureau’s lawyers sought production of the completed questionnaires themselves. The plaintiffs’ lawyers objected, contending that the attorney-client privilege protected the questionnaires from disclosure.

The Court held that the privilege did not protect the questionnaires from disclosure, and the Court was correct for multiple reasons. The client-to-counsel communications contained in the questionnaire appear not to have been for the purpose of seeking legal advice, but rather were for the purpose of completing the mechanics of the settlement agreement. Also, the plaintiffs likely did not have any actual or objectively reasonable expectation of confidentiality concerning the questionnaire responses. Moreover, the privilege, if it ever attached, was likely waived when the plaintiffs’ lawyers provided the database to the Bureau. For all of those reasons, the Court correctly determined that the questionnaires were discoverable.

If the Court had stopped there, its opinion would be unassailable. The Court, however, took one step too far. The Court also held that, because the completed questionnaires contained “purely factual information,” they were not eligible for the protection of the privilege.  According to the Court, “the attorney-client privilege pertains to legal advice . . . It does not protect . . . factual information . . . The Court added that “whether the supervisor knew or had reason to know that the claimant would work overtime [factual information the questionnaire sought] does not require or seek legal advice. The Court misconstrued the applicability of the attorney-client privilege to factual information. The privilege indeed does not shield facts themselves from discovery. “Did you drink before driving?" “Did you backdate stock options“Did your supervisor tell you to work overtime"? In a civil suit, a witness could not properly refuse to respond to those purely factual inquiries on the basis of the attorney-client privilege.

Christofferson, the Court reached the correct result. The attorney-client privilege did not protect the questionnaire responses from disclosure. But the Court erred when it suggested that the privilege did not apply simply because the clients communicated purely factual matters to their lawyers in the completed questionnaires

For assistance with respect to this subject, contact Kevin Allen, a partner in Thorp Reed & Armstrong LLP’s Commercial and Corporate Litigation Practice Group at (412) 394-2374. He is also the author of The Attorney-Client Privilege in Pennsylvania (PBI Press 2007.)

This Thorp Reed & Armstrong, LLP Communiqué is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance. We do not assume any responsibility to revise this Communiqué if there are subsequent changes in the law.

March 2008