One of the most persistent problems in pretrial discovery has been the status of non-privileged pre-existing documents communicated to an attorney for the purpose of obtaining legal assistance. Does the status of the document before being communicated to the attorney dictate the status of the communication in which it has been incorporated? Stated another way, can the copy of the pre-existing document communicated to the attorney by the client be discovered from the attorney, or does the clients confidential communication of it to the attorney give the copy a special status?

In Fisher v. United States, 425 U.S. 391, 403-04 (1976) the Court held that "pre-existing documents which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice." (Emphasis added) Based on the Fisher precedent, lower courts consistently have permitted the discovery or pre-existing documents from attorneys. A variation on this same theme was illustrated in O'Connor v. Boeing North America, 1999 U.S. Dist. LEXIS 11161 (C.D. Cal. Mar. 31, 1999), where the court ordered the defendant to separately list all attachments to documents claimed to be privileged. The court concluded that attachments do not acquire a privilege status by the simple act of attachment.

"As to documents subject to the attorney-client privilege . . ., the plaintiffs are correct in contending that not all attachments to, or enclosures with, such documents are necessarily protected by the privilege. . . . Rather to claim the attorney-client privilege . . . for an attachment to, or enclosure with, another privileged document, the attachment or enclosure must be listed as a separate document on the privilege log; otherwise, such attachment or enclosure must be disclosed."

See also Pacamore Bearings, Inc. v. Minebea Co., Ltd., 918 F. Supp. 491, 511 (D. N.H. 1996) Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D. N.J. 1990); Sneider v. Kimberly-Clark Corp., 91 F.R.D. 1, 4 (N.D. Ill. 1980).

The result in all of these cases is inconsistent with a principle often recognized by the same courts - that the privilege protects communications, not information. This means that the content of what a client communicates to an attorney is privileged, even though the facts that make up that content can independently be discovered from the client. For example, if the client confidentially communicates facts A, B & F to an attorney for the purpose of obtaining legal advice, no one may ask either the client or the clients attorney what facts were communicated, even though the client can be asked to reveal facts A, B & F in the discovery process independent of the attorney-client communication.

Because nonprivileged attachments are discoverable from the client, they should not be discoverable from the attorney, any more than the nonprivileged facts A, B, and F that were incorporated into the client's confidential narrative are discoverable from the attorney. By requiring the attorney to produce those attachments, or even to reveal that they were attached to a confidential letter, the court is requiring the disclosure of part of the substance of the confidential communication itself.

To maintain confidentiality in the face of such decisions, clients are advised to incorporate preexisting communications into communications to an attorney in either of two ways by quoting from them; or (if they have been electronically stored on a word processing system) by cutting and pasting them into subsequent correspondence. Presumably, the same care should be taken with email incorporating prior communications into the communication, rather than attaching them to the transmission.

The need for such manipulation is unfortunate. The manner in which facts in preexisting documents are made part of the communication should be irrelevant to the application of the privilege to the communication. To treat written communications differently from oral communications intolerably elevates form over substance.