concurring.
Although I concur in the result the court reaches here, I wish to comment on its initial statement about the proper standard of review in this case. Before concluding that “a light appellate touch” is appropriate for reviewing the district court’s decisions about whether particular documents were privileged — a conclusion with which I agree — the court comments that it is “generally” the case that mixed questions of law and fact are reviewed under the clearly erroneous standard. That statement is neither here nor there for this case, since we are all agreed that a deferential standard applies on these facts. But I am concerned that it is too sweeping and could lead to error in cases requiring a *503more nuanced appellate review of mixed questions.
As the majority notes, the appropriate standard of review for mixed questions of law and fact is not the same in all cases, and thus this is not a question that lends itself to uniform resolution across different cases. Ante at 500. With that much, I am in full agreement. I note here that this statement, coupled with the observation that the character of documents as privileged or not privileged is a highly fact-specific inquiry for which the clearly erroneous standard is proper, is enough to decide the case before us. The majority goes on, however, to speculate that one can discern a “presumption” in the cases decided within this circuit in favor of clear error review for mixed questions of law and fact. With respect, I think this overstates the case considerably.
Some background is important to understand the way in which mixed questions have in fact been treated in this court and elsewhere. Prior to Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), this court occasionally made sweeping statements along the lines of the majority’s opinion today. See, e.g., United States v. Baldwin, 60 F.3d 363, 365 (7th Cir.1995) (“This court ... has moved decisively to the position that appellate review of determinations of mixed questions of fact and law should be governed by the standard of clear error, and not by the de novo standard.”) (internal citations omitted), vacated, 517 U.S. 1231, 116 S.Ct. 1873, 135 L.Ed.2d 169 (1996); see also Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986) (“[MJost courts treat legal characterizations (negligence, possession, ratification, principal place of business, etc.) as facts to which the clearly-erroneous standard applies. That is certainly the view of this circuit.”) (internal citations omitted); see generally Evan Tsen Lee, Principled Decision Making and the Proper Role of Federal Appellate Courts: The Mixed Questions Conflict, 64 S.Cal.L.Rev. 235, 240-41 (1991) (discussing the Seventh Circuit’s approach to mixed questions as “follow[ing] the rule stated in Mucha v. King without regard to the particular type of mixed question.”). But in Ornelas, the Supreme Court reversed our use of the clear error standard to review a district court’s determination of probable cause and reasonable suspicion, and the Court underscored the point by vacating the judgment in Baldwin, supra, as well, in light of Ornelas. Since then, we have rightly exercised more caution in our choice of the proper standard for mixed questions. See In re Krehl, 86 F.3d 737, 742 (7th Cir.1996).
The majority concedes that Ornelas is not consistent with its idea of a presumption in favor of clear error review, but it attempts to distinguish Ornelas and the cases in this circuit that have followed its methodology by observing that they typically implicate constitutional rights. It is true that one can find recent examples from this court that recognize the need for review more searching than clear error, in which the legal principle at stake came from the Constitution. So, for example, we explained in one case that “[m]ost mixed questions of law and fact that require the application of constitutional principles to historical fact receive de novo review.” Coulter v. Gilmore, 155 F.3d 912, 917 (7th Cir.1998), citing Ornelas v. United States, 517 U.S. at 697-99 and Thompson v. Keohane, 516 U.S. 99, 111-12, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); see also, e.g., United States v. Raszkiewicz, 169 F.3d 459, 1999 WL 74692, at *2 (7th Cir. Feb.18, 1999) (reviewing de novo the mixed question of whether defendant was denied the right to a jury selected from a cross-section of the community); Mahaffey v. Page, 162 F.3d 481, 484 (7th Cir.1998) (reviewing de novo the mixed question of whether defendant made a prima facie case of a Batson violation). But the source of the law that contributes the legal component to the “mixed” question logically has nothing to do with the depth of appellate review. Examples abound of courts that apply a stricter standard of review than clear error to mixed questions that do not implicate the Constitution. See, e.g., Indrest v. Freeman Decorating, Inc., 168 F.3d *504795,1999 WL 98505, at *8 (5th Cir. Feb.26, 1999) (sexual harassment); Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 72 (2d Cir.1999) (fair use of a copyrighted work); Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 422 (6th Cir.1999) (likelihood of confusion in trademark infringement action); Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998) (grant of a preliminary injunction); United States v. Moore, 159 F.3d 1154, 1157 (9th Cir.1998) (conflict of interest , of trial counsel); Brink’s Ltd. v. South African Airways, 149 F.3d 127, 132 (2d Cir.1998) (wilful misconduct under the Warsaw Convention).
In my view, therefore, it is at best unhelpful and at worst misleading to claim that a single standard of review “generally” applies to mixed questions, or that there is some kind of “presumption” in non-constitutional cases. We are required instead to engage in. the type of nuanced, policy-driven analysis the Supreme Court outlined in Ornelas, There the Court examined its past practice, the need for appellate courts to ensure a unitary system of law, the fact that the legal principles at issue acquired their content-.only through application to fact patterns, and the tendency of de novo review to unify precedent. 517 U.S. at 697-99, 116 S.Ct. 1657. In other cases, the Court has considered the district court’s superior fact-finding capabilities and whether searching appellate review would clarify legal doctrine. Salve Regina College v. Russell, 499 U.S. 225, 233, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Pierce v. Underwood, 487 U.S. 552, 559-60, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Only if we, too, engage in a careful review of these factors when selecting a standard of review for each different type of mixed question can we perform our proper function of expounding the law and assuring its uniform application.
In this case, the clear error standard is the right choice for the reasons I have identified: only the underlying facts about the documents are really at issue (i.e., who said what to whom, was the document written for the purpose of preparing tax returns, in what capacity did Frederick operate). Without flagging it, however, the majority has also made an important legal ruling that affected its review: dual-purpose documents are not privileged. This principle can be expressed without regard to the specific facts of a given case, including this one. Because it was easy enough to dissect this general legal principle out from the facts, it was also easy to apply clear error review to the factual components of the privilege question. Even if the question is theoretically a “mixed” one, clear error review is the appropriate choice whenever the appellate court is able cleanly to separate and focus its attention exclusively on the factual findings that he behind the mixed question. When the meaning of the law (constitutional or otherwise) cannot be separated from the significance of the facts, however, Ornelas requires us to apply de novo review. This is not a choice that can be made in the abstract, or through presumptions. Only a careful analysis of each case will enable us to make the proper choice.