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The attorney-client privilege protects communications, not
historical facts. And because the privilege's owner waives that
protection only by disclosing (or relying upon) privileged
communications, disclosing non-protected historical facts should
not cause a waiver.
Courts have applied this general principle when companies
provide historical facts to the government. In Escue v.
Sequent, Inc., Civ. A. No. 2:09-cv-765, 2012 U.S. Dist. LEXIS
9949 (S.D. Ohio Jan. 25, 2012), defendant company Sequent
investigated an allegedly illegal transfer of trust funds to
another account. After its investigation, the company's lawyer
sent a memorandum to the Department of Labor "detailing what
had occurred" and "explain[ing] how he learned of the
improper transaction and what steps Sequent took to correct
it." Id. at *24-25. Plaintiff argued that the
lawyer's memorandum "waives Sequent's privilege with
respect to all attorney-client communications regarding the
criminal investigation." Id. at *25. The court
rejected plaintiff's argument, explaining that "the
disclosures did not reveal any particulars concerning the advice
provided by counsel." Id. Instead, the memorandum
"contain[ed] a recitation of the facts counsel learned from
the investigation." Id. The court also noted that
plaintiff "has been permitted to question witnesses with
actual knowledge of the January 2006 transfer of funds."
Id.
Courts properly applying attorney-client privilege waiver
principles correctly conclude that even a lawyer's disclosure
of historical facts to an adversarial government does not waive
privilege protection for related communications.
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