The attorney-client privilege protects only communications, not
historical facts. But as in so many other areas, the work product
doctrine presents a more complicated picture.
In United States v. J-M Manufacturing Co., Civ. A. No.
11-cv-01691-MSK-MJW, 2013 U.S. Dist. LEXIS 14800 (D. Colo. Feb. 4,
2013), the court dealt with the results of defendant's tests
conducted on PVC plastic pipe. The court acknowledged that
"[t]est results, of themselves, simply reflect matters of
historical fact." Id. at *11-12. However, the court
also explained that "[t]he selection of a particular test
methodology or testing sample or set of samples to test could . . .
permit one to draw inferences as to the reasons why one option was
selected over another; those inferences, in turn, could reveal
attorney opinions, theories, or strategies." Id. at
*12. The court further explained that "[t]his, in turn, throws
new light on the purely 'factual' test results" - thus
justifying withholding of
