*827Concurring and Dissenting opinion by:
PHIL HARDBERGER, Chief Justice.I agree with the majority that some documents for which production was ordered are privileged. The privileged documents include attorney communications (both written and e-mail), internal check requests, and draft reports containing recommended changes by attorneys. I disagree though that the test results are privileged (PTM-0046 and portions of PTM-0081).
As the majority states, over 100,000 pages of documents, drawings, and videotapes were produced by Toyota in discovery; however, neither the trial judge nor the judges on this court can determine if the test results Toyota seeks to protect are included in the documents that have been produced. The plaintiffs’ requests for production include a request for all testing information.
Test results are not an attorney communication or attorney work product, and Toyota cannot cloak the test results with a privilege by attaching the results to an attorney communication or enclosing it in a binder. Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex.1996). As the United States Supreme Court has stated:
A fact is one thing and a communication concerning that fact is an entirely different thing. 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.
Upjohn Co. v. United States, 449 U.S. 383, 895-96, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “Opposing counsel is entitled to obtain through discovery the names of witnesses, facts underlying the cause of action, technical data, the results of studies, investigations and testing to be used at trial, and other factual information.” Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 632 (M.D.Penn.1997). “The inclusion of such information in documents prepared by, or circulated to, counsel does not render them inviolate on grounds of privilege.” Id.
The attorney communications to which the test results are attached may retain their privilege, but the material facts — the test results — are not privileged. I would hold that the trial court did not abuse its discretion in allowing the test results to be discovered, and I respectfully dissent to the portion of the majority’s opinion that holds to the contrary.