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EFTA00222960

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PRE-EXISTING FACTS, DOCUMENTS, AND INFORMATION ARE NOT COVERED BY THE ATTORNEY-CLIENT PRIVILEGE OR THE WORK PRODUCT DOCTRINE. In asserting that the contents of the computers are covered by the attorney-client privilege or the work product doctrine, Epstein attempts to stretch the privileges beyond its limits. There has been no assertion that the computers themselves were communications or that the computers contain attorney-client communications, nor were the computers or their contents produced in anticipation of litigation. In Upjohn I United States , 449 U.S. 383 (1981), the Supreme Court made clear that an attorney cannot create a "zone of silence" over factual matters. The Court wrote: the attorney-client "privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney." Id. at 395. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney. . . . [T]he courts have noted that a party cannot conceal a fact merely be revealing it to his lawyer. Id. at 396 (internal citations and quotations omitted). Likewise, despite a claim of attorney work product, "[w]here relevant and nonprivileged facts remain hidden in an attorney's file and where production of those facts is essential to that preparation of one's case, discovery may properly be had." Hickman I Taylor , 329 U.S. 495, 511 (1947). Furthermore, the "work product rule protects work done by an attorney in anticipation of, or during, litigation," In re Grand Jury Subpoena , 274 F.3d at 574, not physical objects, like the computers, or the pre-existing records contained therein, which were created by Epstein or third parties, not attorneys. Cl In re Grand Jury Matter No. 91-01386 , 969 F.2d 995 (11th

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