The attorney-client privilege exists to encourage candid communications between clients and their lawyers. The privilege does not protect facts from disclosure, but it does protect from disclosure the communication of facts by a client to his lawyer (provided that the other elements of the privilege are satisfied). For example, the fact of a client’s whereabouts at the time of a murder is not privileged, but an email from a client to his defense attorney in which the client discloses his whereabouts at the time of the murder is privileged. The communication (the email) is fully privileged even though it communicates only a fact (the client’s whereabouts). Similarly, a conversation between a client and a third party is not privileged, but an email from that client to her lawyer that does nothing more than recite the content of the client’s conversation with the third party is privileged. There are two instances of communication in play: the conversation with the third party and the subsequent email to the lawyer. The privilege does not protect the first communication, but it protects the second even if the second only reports on the first.

The Pennsylvania Superior Court recently stumbled over those distinctions in King v. Kappa Sigma Fraternity, 2025 PA Super 8 (Jan. 13, 2025). King involves the death of a student allegedly after a night of drinking at a sorority party. After the incident, the sorority (AST) hired counsel and arranged for interviews of the sorority members who attended the party. AST’s lawyer and its CEO and COO attended each interview, as did personal counsel for each interviewee. The AST executives took handwritten notes of the interviews. The notes were “a factual summary of what the interviewees had stated” in the interviews. After the interviews, the AST executives provided their notes to AST’s lawyer.

The plaintiff sought the production of the notes. AST withheld the notes, invoking both the attorney-client privilege and the work-product doctrine. The trial court, subject to certain limited exceptions, held that neither the attorney-client privilege nor the work-product doctrine applied and ordered AST to produce the notes. AST took an interlocutory appeal.

After correctly determining that the work-product doctrine did not protect the notes (due to the very narrow protection that Pennsylvania affords nonattorney work product), the Superior Court turned its attention to the attorney-client privilege. The court recited the familiar elements of the privilege, one of which is that the “communication relates to a fact of which the attorney was informed by his client, without the presence of strangers.” The Superior Court held that the privilege did not protect the notes because the notes did not convey confidential facts to counsel but instead merely relayed what the interviewees had said when strangers to the privilege, as well as AST counsel, were present.

King is analytically incorrect with respect to the attorney-client privilege because the court did not analyze the correct “communication.” There were two separate relevant communications, but the court collapsed them into one or conflated one with the other. The first communication or set of communications occurred during the interviews themselves: the interviewers asked questions, and the interviewees answered. With respect to that initial set of communications, there is no doubt that the privilege did not apply because, among other reasons, strangers to any AST attorney-client relationship were present (the interviewees’ personal attorneys—and likely the interviewees themselves). Thus, those communications—what was said in the interviews—would be fair game for discovery; for instance, the attorney-client privilege would not prohibit a deposition question to the CEO asking what the interviewees said in their interviews.

Where the Superior Court went astray was in conflating that initial set of communications with a later communication, which occurred when AST’s CEO and COO provided their notes of the interviews to AST’s counsel. Unlike those that occurred during the interviews themselves, that subsequent communication—the provision of the notes to counsel—occurred without the presence of strangers. The act of providing the notes to counsel consisted, in effect, of a client communicating to its lawyer: “This is what I heard these witnesses say during their interviews.” That is a different relevant “communication” for purposes of the privilege than the “communications” that occurred during the interviews themselves.

The later communication to counsel is eligible for privilege protection even if it merely reported on what was earlier communicated in the non-privileged interviews. For example, hypothetically, if two corporate executives are in a meeting discussing a potential transaction, and then later one of the executives reports to corporate counsel the executive’s memory of what her counterpart said in the meeting, the executive’s report to counsel is entirely privileged even though the communications that occurred at the meeting are not. The executive certainly could be deposed about what happened at the meeting, but properly could refuse to say what she later reported to counsel about that same meeting. And the result would not, or at least should not, change if the same corporate counsel happened to also be in attendance at the same meeting with the executives.

There may well have been valid reasons for the King court to conclude that the privilege did not apply to the AST CEO/COO notes. If the AST executives prepared the notes for their own use, or for another reason other than to relay the notes to AST counsel, the executives could not thereafter magically immunize the non-privileged notes from discovery simply by providing them to counsel. Also, AST failed to provide evidence that the executives had provided the notes only to corporate counsel—in other words, AST did not meet its burden to demonstrate that the second communication—relaying the notes—was something kept in confidence between counsel and client.

But analytical precision is important. And in King, the Superior Court did not focus on the correct “communication” in conducting its attorney-client privilege analysis.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.