The attorney-client privilege normally does not protect
pre-existing historical documents, even if clients convey those to
their lawyers. In the work product context, lawyers' selection
of certain intrinsically unprotected historical documents can
deserve opinion work product protection — but few courts have
recognized a parallel protection for clients' selection of
historical documents they consider important. This is one of the
most mysterious gaps in privilege jurisprudence.
In GE v. United States, the government challenged
GE's privilege assertion for "attachments to otherwise
privileged email communications between [GE] attorneys and GE
personnel." No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS
122562, at *4 (D. Conn. Sept. 15, 2015). The court refreshingly
acknowledged that an intrinsically unprotected historical document
the client sends a lawyer could "reveal that it was
communicated in confidence to an attorney in connection with the
seeking or receipt of
