OPINION AND ORDER
JOHN MORGAN DAVIS, District Judge.
This is a class action brought by some members of the Upholsterers International Union of North America (UIU) against the officers of the Union and the trustees of both the Health and Welfare Fund, and the Pension Fund. The action is based on an allegation of breach of fiduciary duty by the defendants in the management of the aforementioned funds.
Plaintiff's counsel admits in his brief that many of the facts which were developed for the named plaintiffs resulted from a detailed investigation which was conducted by counsel for the plaintiffs and not by the plaintiffs themselves. The facts derived from the investigation then formed the basis for the complaint; the information which the plaintiffs verified by executing an affidavit to the effect that the allegations are "true and correct to the best of my knowledge, information and belief" was obtained by plaintiff's counsel.
Although it is admitted that plaintiff's counsel would be required to answer questions propounded by the defendant regarding the investigation which was conducted prior to commencement of the lawsuit, absent some other privilege, it is contended that the attorney-client privilege protects the plaintiff himself from responding, since the plaintiff would have acquired the information in a direct attorney-client interview, "for the specific and confidential purpose of making decisions as to this litigation."
Plaintiff's counsel contends that the attorney-client privilege is applicable not only to direct questions, such as "What did Mr. Bergman [plaintiff's counsel] tell you?", but also to indirect questions the answers to which are based solely upon the factual information which was related to the plaintiffs, by their counsel. Accordingly, the plaintiff was advised not to respond to certain questions which were directed by the defendant's counsel during depositions. Counsel for both sides have orally agreed that this Order may be directed to the categories, or generic types of information sought via deposition, in lieu of submitting specific questions to this court for individual rulings. The four representative categories of information which were presented in defendant's brief and the oral argument will be adopted for the purposes of analysis.
The plaintiff refused to respond to questions which related to facts in support of the allegations contained in the complaint which, according to plaintiff's counsel, were obtained by him (counsel) from persons other than the plaintiffs, and subsequently explained to the plaintiffs.
Essentially, the defendant's position is that the attorney-client privilege is inapplicable because:
1. The privilege extends only to communications, not facts.
2. The privilege applies only to disclosures made by a client to his attorney, and not to information which the attorney obtained from other sources. With regard to the former, the defendant has cited City of Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D.Pa., 1962) in support of the proposition that the attorney-client privilege extends to communications, and not to facts. In Westinghouse, one of the anti-trust electrical cases, the defendant corporation was not permitted to invoke the attorney-client privilege to prevent discovery of information regarding meetings wherein prices, terms of sale, and territories were discussed by corporate officials, merely because the information sought was collected by the attorney in preparation for litigation. But this information was compiled by the attorney (representing both individual and corporate defendants) and never communicated, i.e. related or reported to the "corporation" in an attorney-client relationship. Since there was no communication, the compilation of knowledge or "facts" in the possession of the attorney was not protected by way of the attorney-client privilege.
In the instant case, there is no issue regarding whether the information was communicated i.e. transmitted from one person to another. Not only is Westinghouse factually distinguishable, but it has been erroneously construed by counsel for the proposition that communications and facts are mutually exclusive terms. Theoretically, "communication" which would be exempt from disclosure by the attorney-client privilege, can certainly include "facts" which are not within the knowledge of the client until related by the attorney. Consequently, we find that distinction to be without merit.
The defendant also argues that the attorney-client privilege applies only to disclosures made by a client to his attorney, and not the converse.
In Pennsylvania the attorney-client privilege is governed by statute, which states:
Nor shall counsel be competent or permitted to testify to confidential communications made to him by his client or the client be compelled to disclose the same, unless in either case this privilege be waived upon the trial by the client.
The question of whether the attorney-client privilege is applicable is governed by state law, Spray Products Corp. v. Strouse, Inc., 31 F.R.D. 244 (E.D.Pa.1962).
The attorney-client privilege is designed to secure subjective freedom of mind for the client in seeking legal advice. The client is thereby encouraged to communicate with his attorney about matters which he may not otherwise feel free to discuss. 8 Wigmore, Evidence (McNaughton rev., 1961) p. 545. Since discussion necessarily requires a mutual exchange of thought, there is no basis, theoretically at least, why factual communications from the attorney to the client may not be encompassed within the privilege. Indeed, a principal function of an attorney may require the revelation of information properly characterized as "facts", in contrast to "advice", i.e. professional analysis regarding the feasibility of a contemplated course of action.
However, to prevent abuse of the attorney-client privilege, it has long been held that privileged communications between an attorney and his client are confined to confidential communications and knowledge derived wholly or in part from private and professional intercourse, and do not embrace those facts with which counsel may become acquainted collaterally, Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44 L.R.A. 432 (1898). In In re: Ruos, 159 F. 252, 256 (E.D.Pa.1908), the purpose of the attorney-client privilege was succinctly stated as:
The ground upon which the rule has been rested for more than a century is the vital importance to the client that he should feel perfectly safe in disclosing the secrets of his case to his legal adviser. Protected by the privilege, he may be confident that (with few exceptions) whatever he may communicate cannot thereafter be used against him.