United States of America v. BAE Systems Tactical Vehicle Systems, LP
OPINION and ORDER Granting Defendant's 38 , 39 Motion to Compel. Signed by District Judge Nancy G. Edmunds. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Case No. 15-12225
Honorable Nancy G. Edmunds
BAE SYSTEMS TACTICAL VEHICLE
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO COMPEL [38, 39]
This opinion addresses a discovery dispute between Plaintiff United States of America
(the Government) and Defendant BAE Systems Tactical Vehicle Systems (BAE). BAE has
requested discovery related to the facts, conclusions, and analysis underlying the decision
of United States Contracting Officer Lisa Jones to rescind the Army's demand for payment
from BAE. The Government, which is pursuing this action on the Army's behalf, has
refused to respond substantively to those requests, objecting on the bases of attorneyclient privilege and work product doctrine. The Government argues that those protections
apply because Ms. Jones rescinded the demand "in consultation with and based on
information and advice provided by counsel[.]" (Dkt. 38-17, at 6.) Now BAE moves to
compel the requested discovery, arguing that the Army's "strategic decision to conduct [its]
review through counsel, and funnel the basis for the decision to the Contracting Officer
through lawyers, does not shroud the Contracting Officer's conclusions or the underlying
facts and analyses in attorney-client privilege or work product protection." (Dkt. 38, at 2.)
For the reasons that follow, the motion to compel is GRANTED.
This litigation arises out of a contract under which BAE agreed to provide trucks and
trailers to the Army. (Dkt. 3 at ¶ 21.) The Government alleges that, during contract
negotiations, BAE provided pricing information that falsely or fraudulently over-charged the
Government. (Id. at ¶ 3.) BAE's alleged misrepresentations also led to a (now-rescinded)
demand for payment by the Army, which in turn formed the basis of (now-dismissed)
proceedings before the Armed Services Board of Contract Appeals (ASBCA).
The Army's pursuit of payment from BAE began after the Defense Contract Audit
Agency (DCAA) finished auditing the contract. The post-audit final report, which was
issued on May 31, 2013, alleged generally that BAE provided cost or pricing data that was
not accurate, complete, and current as of the date of price agreement. (Dkt. 38-9, at 1.)
On June 11, 2014, Army Contracting Officer Timothy Nichols sent BAE a letter
incorporating the allegations from that report and demanding approximately $56 million paid
under the contract, plus interest. (Dkt. 38-6.) A month after that, Mr. Nichols issued a
contracting officer's final decision reiterating the demand for payment. (Dkt. 38-7.)
BAE then appealed the contracting officer's final decision, which initiated proceedings
before the ASBCA. During those proceedings, the Army was represented by attorneys
from the Army Legal Services Agency, Contract & Fiscal Law Division (KFLD), and the
parties engaged in extensive discovery.
(Dkt. 47-1, at ¶¶ 3-5.)
According to the
Government, the record of discovery from those proceedings, also called the "Rule 4 File,"
comprises 260 exhibits, including contract and negotiation records, spreadsheets, audit
reports, and some of the cost and pricing data at issue. (Dkt. 47, at 3.) The parties also
conducted depositions and exchanged additional documents. (Id.)
Meanwhile, as discovery in the ASBCA proceedings continued, the Government filed
this action in June 2015 "on behalf of the Department of the Army, an agency of the United
States, acting by and through the Contracting Officer for the Army Contracting Command."
(Dkt. 3 at ¶ 9.) The Amended Complaint alleges, inter alia, that BAE is liable under the
False Claims Act (FCA) based on fraud, false claims for payment, and false statements.
(Id. at ¶¶ 135-148.) The FCA provisions invoked impose liability on any person who
"knowingly presents, or causes to be presented, a false or fraudulent claim for payment or
approval," or who "knowingly makes, uses, or causes to be made or used, a false record
or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(A)-(B).
Soon after this litigation began, the Army moved to stay the ASBCA proceedings until
this case resolved. (See Dkt. 38-10.) The Army argued that a stay was appropriate
primarily because litigating the same facts and legal issues in both forums could result in
conflicting decisions. (See id. at 2.) The Army explained that the two matters involved
"precisely the same facts," for they were "similarly rooted in the findings of the DCAA Audit
of BAE's pricing, and involve[d] the same pricing proposal[,] BOMs [Bills of Materials,] and
negotiations." (See id. at 5-6.) The only significant difference between the matters, the
Army emphasized, was that the FCA requires the Government to prove that BAE acted
"knowingly." (Id. at 6.) The ASBCA ultimately denied the request for a stay, finding that
BAE was "entitled to our decision" on "whether the government has correctly claimed that
BAE  did not meet its contractual duty to disclose current, accurate, and complete cost or
pricing data." (Dkt. 38-11, at 10.) But the ASBCA acknowledged that "[b]oth parties agree
that the facts relevant to both cases are nearly completely overlapping and that the two
cases will require examination of common documents and witnesses[.]" (Id. at 8.)
In October 2016, Ms. Jones replaced Mr. Nichols as the contracting officer assigned
to the contract between the Army and BAE. Then, in what BAE calls "a telling and abrupt
turn of events," Ms. Jones sent a letter to BAE on November 17, 2016 stating that the Army
was "unequivocally and entirely" rescinding the previous contracting officer's demand letter
and final decision. (Dkt. 38-12.) This letter also reported that "[t]he Government has no
intention of issuing a new Final Decision" but elaborated no further. (Id.) The next day, the
Army moved to dismiss the ASBCA action as moot because the contracting officer had
rescinded the final decision underlying the appeal. (Dkt. 38-13.) The ASBCA granted the
motion to dismiss. (Dkt. 38-14.)
Around the same time, BAE filed discovery requests in this action related to Ms.
Jones' decision to rescind the demand letter and final decision. (Dkt. 38-16.) These
included: (1) an interrogatory asking the Government to describe in detail the basis for Ms.
Jones' decision, including the rationale for the rescission and all documents, facts, or
information relied upon or related to the rescission; (2) a request for production of all
documents used, reviewed, or relied on to respond to that interrogatory, or used, reviewed,
relied on, or that related to Jones' decision; and (3) a deposition of Ms. Jones. (Id.)
The Government objected to these requests on the bases of attorney-client privilege
and work product doctrine, explaining that Ms. Jones rescinded the demand "in
consultation with and based on information and advice provided by counsel[.]" (Dkt. 38-17,
at 6.) According to the Government, "KFLD selected for review and provided to Ms. Jones
all of the factual evidence that she reviewed[.]" (Dkt. 47, at 4.) Ms. Jones has since
corroborated that account, testifying that she did not review the underlying facts and relied
on KFLD's assessment. (Dkt. 38-2, at 140:8-15; 141:7-11.) The materials that KFLD
assessed included the Rule 4 File and the discovery produced by both parties. (Dkt. 47-1
at ¶¶ 7-9.) Ms. Jones also received access to the "Trial Attorney Litigation File," but she
does not recall whether she reviewed it. (Dkt. 38-2, at 111:13-112:14.)
Following further correspondence between the parties, the Government produced Ms.
Jones for a deposition on January 25, 2017. (Id.) But the Government prevented Ms.
Jones from testifying regarding her review of the facts, her conclusions, or her underlying
reasons for rescinding the demand letter and final decision. Furthermore, the Government
produced 838 documents, but 31 of these were redacted for privilege or protection. The
Government also withheld 56 documents as allegedly privileged or protected. Now BAE
moves to compel the Government to produce the requested discovery.1 BAE requests in
the alternative that, if the Court finds that privilege and work product protection must be
determined on a communication-by-communication basis, the Court will conduct an in
camera review of the documents withheld by the Government.
"The scope of discovery under the Federal Rules of Civil Procedure is traditionally
quite broad." Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998).
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of the case[.]" Fed. R. Civ. P.
26(b)(1). "Information within this scope of discovery need not be admissible in evidence
to be discoverable." Id. A party may move to compel discovery if a deponent fails to
BAE additionally requests in its Reply that the Court compel discovery that BAE sought
after filing this motion. (See Dkt. 49, at 16-17.) The Court declines to address that request
because the matter has not been sufficiently briefed.
answer a question asked under Rule 30 or 31; fails to answer an interrogatory submitted
under Rule 33; or fails to produce documents requested under Rule 34. Fed. R. Civ. P.
BAE argues that the Government has improperly invoked the attorney-client privilege
and work product doctrine. For the reasons below, the Court agrees that neither protection
applies to the discovery sought by BAE.
A. The Attorney-Client Privilege Does Not Apply
The Government asserts attorney-client privilege over three categories of documents
and information. First, it argues that it properly withheld materials documenting KFLD's
assessment of the evidence in the ASBCA litigation, including the litigating attorney's
review and assessment of the evidence. (Dkt. 47, at 9-10.) The Government maintains
that these "discussions between litigator and client are classic examples of privileged
material." (Id. at 10.) The second group of allegedly privileged materials consists of
communications reflecting internal Army discussions about the assessment provided by
KFLD. (Id. at 11.) Whether these materials are privileged depends on whether the
assessment provided to Ms. Jones is privileged. Finally, the Government asserts privilege
over materials that would reveal the content of allegedly privileged communications
between the Army and KFLD. (Id. at 12.) For the reasons that follow, the Court finds that
the attorney-client privilege does not protect the discovery sought by BAE.
The purpose of the attorney-client privilege is to foster frank and complete discussions
between a client and his attorney. Automated Sols. Corp. v. Paragon Data Sys., Inc., 756
F.3d 504, 517 (6th Cir. 2014). However, because the privilege reduces the amount of
information discoverable during the course of a lawsuit, claims of attorney-client privilege
are narrowly construed. In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293
F.3d 289, 294 (6th Cir. 2002) (citations omitted).
The privilege applies only where
necessary to achieve its purpose of encouraging clients to make full disclosures to their
attorneys. In re Grand Jury Subpoena, 886 F.2d 135, 137 (6th Cir. 1989).
When the government is involved in civil litigation, it may claim the attorney-client
privilege. See Ross v. City of Memphis, 423 F.3d 596, 603 (6th Cir. 2005) (explaining that
"government entities are well-served by the privilege, which allows them to investigate
potential wrongdoing more fully and, equally important, pursue remedial options"). To
determine if the privilege applies, courts in the Sixth Circuit must consider the following:
The elements of the attorney-client privilege are as follows: (1) Where legal
advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are at his instance permanently protected
(7) from disclosure by himself or by the legal adviser, (8) unless the
protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998).
However, "the requirement that the communication be 'by the client' is not necessarily
a literal one[.]" Bailey v. Oakwood Healthcare, Inc., 2017 WL 427714, at *1 (E.D. Mich.
Feb. 1, 2017). "[A]n attorney's communications to a client may also be protected by the
privilege, to the extent that they are based on or contain confidential information provided
by the client, or legal advice or opinions of the attorney." Id. (quoting Schenet v. Anderson,
678 F. Supp. 1280, 1281 (E.D. Mich. 1988)). The burden of establishing the existence of
the privilege rests with the party asserting it. United States v. Dakota, 197 F.3d 821, 825
(6th Cir. 1999).
1. KFLD Was Not Acting in Its Capacity as Professional Legal Adviser
BAE argues that the attorney-client privilege does not shield the underlying basis for
Ms. Jones' decision because KFLD was not acting as a legal adviser when it curated the
relevant facts and then funneled them to Ms. Jones. The Court agrees. The party
attempting to invoke the attorney-client privilege must show that counsel was acting in his
or her capacity as a "professional legal adviser." Reed, 134 F.3d at 355-56; see also
United States v. Bartone, 400 F.2d 459, 461 (6th Cir. 1968) ("The mere fact that a person
is an attorney does not render as privileged everything he does for and with a client.").
When a lawyer provides non-legal services, such as supplying business advice, the
privilege does not attach. See Neuberger Berman Real Estate Income Fund, Inc. v. Lola,
230 F.R.D. 398, 422 (D. Md. 2005); Neuder v. Battelle Pac. Nw. Nat'l Lab., 194 F.R.D. 289,
292 (D.D.C. 2000); see also In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998)
("[Attorney's] advice on political, strategic, or policy issues, valuable as it may have been,
would not be shielded from disclosure by the attorney-client privilege.").
Consistent with that principle, many courts have decided that the privilege does not
apply when lawyers either act as fact-finders or provide information without the purpose of
providing legal advice. See, e.g., Michigan First Credit Union v. Cumis Ins. Soc., Inc., 2006
WL 1851018, at *2 (E.D. Mich. July 5, 2006) (declining to apply the privilege to
communications reflecting attorney's work investigating an insurance claim); Argo Systems
FZE v. Liberty Ins. PTE, Ltd., 2005 WL 1355060, at *3 (S.D. Ala. June 7, 2005) (permitting
deposition of attorney where counsel and his law firm performed services in the nature of
a claims investigator); Lewis v. United States, 2004 WL 3203121, at *3 (W.D. Tenn. Dec.
7, 2004) (rejecting privilege claim where attorney's activities "centered around providing the
Board of Directors with information about the alleged tax deficiency"), aff'd, 2005 WL
1926655 (W.D. Tenn. June 20, 2005); Diamond v. City of Mobile, 86 F.R.D. 324, 328 (S.D.
Ala. Jan. 16, 1978) (holding that privilege did not cover attorney's communications where
"[t]he purpose of his activities was not to provide legal advice or assistance to the persons
questioned, but rather to provide his client the City of Mobile with information relating to the
alleged indiscretions within the Mobile Police Department").
One such decision is particularly instructive here. In Gulf Grp. Gen. Enters. Co. v.
United States, the plaintiff was challenging an army contracting officer's final decision on
contracts that the Army had terminated. 98 Fed. Cl. 647 (2011). The parties disputed
whether the plaintiff could elicit testimony from a government lawyer who had served in two
capacities: "one to prepare a litigation report for the Department of Justice in support of the
litigation, and the other to provide facts to assist the contracting officer prepare his
contracting officer's final decisions." Id. at 652. The plaintiff sought the lawyer's testimony
because it had the potential to illuminate the Army's "apparently shifting basis" for why it
had terminated the contracts, and the Government objected on the basis of attorney-client
privilege. Id. at 651. The Court of Federal Claims, which frequently hears cases involving
government contracts, rejected the privilege claim, concluding that the "plaintiff properly
should be able to explore" the attorney's provision of facts to the contracting officer. Id. at
652. This was true even though the testimony might prove "duplicative." Id. at 651.
Gulf Grp. shares many parallels with this case. Here, KFLD "provide[d] facts to assist
the contracting officer prepare" her decision rescinding the Army's demand for payment,
and BAE seeks discovery to clarify the Army's "apparently shifting basis" for its decisions.
While the Government attempts to distinguish Gulf Grp. on the ground that KFLD simply
"analyzed evidence discovered through litigation, and not through a 'fact investigation' or
'fact-finding process,'" the Court sees no meaningful distinction between the cases. (Dkt.
47, at 15.) The attorney in Gulf Grp. characterized her fact-finding role as "helping Mr.
Joseph Libbey, a Contracting Officer, prepare the court directed final decisions." 98 Fed.
Cl. at 650. Here, the Government has characterized KFLD's work in similar terms, stating:
(1) that KFLD provided facts to Ms. Jones "to guide her understanding of the events"; and
(2) that her decision was "[b]ased on the advice and information she received." (Dkt. 47,
at 4-5.) That seems a lot like "helping" a contracting officer prepare a decision, so the
Court rejects the Government's attempt to distinguish Gulf Grp.
For similar reasons, the Court also rejects the Government's reliance on Alexander
v. FBI, 192 F.R.D. 32 (D.D.C. 2000). There, the court held that facts communicated by a
lawyer to a client before that client's deposition were privileged because revealing those
facts would be "'tantamount to revealing the substance of what was discussed with counsel'
in furtherance of legal services." Id. at 35. That holding is inapposite here because, while
preparing a client for a deposition is one of the quintessential "legal services" that attorneys
offer, supplying the factual basis for a contracting officer's decision is not. As to the other
case relied on by the Government, Bergstrom, Inc. v. Glacier Bay, Inc., it is even less
relevant. 2010 WL 257253 (N.D. Ill. Jan. 22, 2010). The issue there was whether the court
should compel discovery reflecting information that the client communicated to his attorney.
See id. at *4. Here, BAE does not seek facts that Ms. Jones communicated to KFLD; it
seeks the information offered by KFLD, which Ms. Jones adopted as the basis for her
decision. Bergstrom is therefore inapposite.
The Court further rejects the Government's argument that, because BAE has access
to the same information that KFLD reviewed, the Government is not withholding any facts.
First, that argument misunderstands the point of BAE's motion to compel; Ms. Jones'
assessment of those facts and the conclusions that she drew from her communications
with KFLD are themselves discoverable facts. Second, it ignores the well-established rule
that "[c]lients cannot refuse to disclose facts which their attorneys conveyed to them and
which the attorneys obtained from independent sources." Protective Nat'l Ins. Co. of
Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278 (D. Neb. 1989) (quoting Sedco
Int'l, S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir. 1982)).
Given the above, the Court reaches the same conclusion as the court in Gulf Grp.
Because the Government has not established that KFLD was acting in its capacity as legal
adviser when it supplied the facts that formed the basis of Ms. Jones' decision, the
attorney-client privilege does not protect the discovery sought by BAE. See Amway Corp.
v. Proctor & Gamble Co., 2001 WL 1818698, at *5 (W.D. Mich. Apr. 3, 2001) ("[F]or the
privilege to be applicable, the proponent must demonstrate that the lawyer has acted in a
legal capacity rather than in any of the other functions that legally trained individuals
perform in our society."). The factual basis for Ms. Jones' decision would have been
discoverable had she reviewed the facts herself, and the Court will not permit the
Government to "construct a 'shroud of secrecy'" around what would have been an
"otherwise ordinary" fact review. Mich. First Credit Union, 2006 WL 1851018, at *2.
2. The Rescission Was Not A Privileged and Protected Litigation Decision
While the aforementioned provides sufficient grounds for rejecting the Government's
privilege claims, an alternative reason emerges from cases holding that the attorney-client
privilege does not cover communications adopted as or incorporated into final agency
actions or decisions. See, e.g., Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 360 (2d Cir.
2005) ("[T]he attorney-client privilege may not be invoked to protect a document adopted
as, or incorporated by reference into, an agency's policy."); General Elec. Co. v. Johnson,
2006 WL 2616187, at *15 (D.D.C. Sept. 12, 2006) (holding that privilege does not protect
materials that "amount to an affirmative determination by the agency that the party is
legally responsible for a specific violation, and assigns certain attendant responsibilities and
penalties"); Falcone v. IRS, 479 F. Supp. 985, 990 (E.D. Mich. 1979) ("[I]t is clear that the
purpose of the privilege is not to protect communications which are statements of policy
and interpretations adopted by the agency.").
The Government attempts to distinguish those cases on the ground that "[n]either a
contracting officer's final decision, nor the rescission of one, has the force and effect of law
or represents a statement of what the law is or what an agency's policy is." (Dkt. 47, at 25.)
In the Government's view, the rescission is a "privileged and protected litigation decision,"
comparable to a private party's decision to dismiss litigation voluntarily. (Id.) The Court
disagrees, finding that the rescission more closely resembles an agency's rescission of a
decision reached through administrative adjudication, the underlying basis of which would
not be privileged. See General Elec., 2006 WL 2616187, at *16 ("[T]he privileged role of
an attorney does not encompass the establishment of broad agency policy, adjudication
of responsibilities, assessment of penalties, or other functions that create the law.").
Under the statute governing public contract disputes, "[e]ach claim by the Federal
Government against a contractor relating to a contract shall be the subject of a written
decision by the contracting officer," and "[t]he contracting officer's decision shall state the
reasons for the decision reached[.]"
41 U.S.C. § 7203(a)(3), (e).
regulations further require that "[t]he contracting officer  must render a decision that is fair
and impartial." Fireman's Fund Ins. Co. v. United States, 92 Fed. Cl. 598, 696 (2010)
(citing Federal Acquisition Regulation (FAR) 1.602-2). In light of that responsibility to
evaluate and issue decisions on the claims of disputing parties, contracting officers appear
to serve in a "quasi-judicial capacity," which is a characterization that the ASBCA has also
employed. Appeal of Space Age Eng'g, Inc., 82-1 B.C.A. (CCH) ¶ 15766 (ASBCA No.
26028, 1982); see also Fireman's Fund Ins., 92 Fed. Cl. at 696 (holding that a contracting
officer may consult advisers but must ultimately "put his own mind to the problems and
render his own decisions").
It would thus defy logic for the Court to conclude that Ms. Jones is more like a private
litigant than an agency adjudicator. When she rescinded the final decision and canceled
the $56 million debt owed by BAE, it functioned effectively like an agency's rescission of
a decision reached through administrative adjudication. Accordingly, when Ms. Jones
adopted KFLD's assessment of the facts as the basis for the rescission, any possible
attorney-client privilege over that assessment evaporated. See General Elec., 2006 WL
2616187, at *16 ("[W]hen an attorney is acting more in the nature of a business advisor,
legislator, adjudicator, or regulator, the attorney-client privilege generally does not apply.");
see also Ford Motor Co. v. U.S. Customs & Border Prot., 2008 WL 4899402, at *18 (E.D.
Mich. Aug. 1, 2008) ("In the context of federal agency communications, where a counsel's
opinion or recommendation is analogous to a final disposition that has operative and
controlling effect over the decision-making process, such opinions must be disclosed."),
adopted in relevant part, 2008 WL 4899401 (E.D. Mich. Nov. 12, 2008).
B. Work Product Doctrine Does Not Apply
The work product doctrine "is distinct from and broader than the attorney-client
privilege." In re Columbia, 293 F.3d at 294 (citation omitted) "The doctrine is designed to
allow an attorney to 'assemble information, sift what he considers to be relevant from the
irrelevant facts, prepare his legal theories and plan his strategy without undue and needless
interference ... to promote justice and to protect [his] clients' interests.'" Id. (quoting
Hickman v. Taylor, 329 U.S. 495, 510 (1947)). Under the doctrine, "[o]rdinarily, a party may
not discover documents and tangible things that are prepared in anticipation of litigation or
for trial by or for another party or its representative[.]" Fed. R. Civ. P. 26(b)(3)(A). The
doctrine covers the work of government attorneys. NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 153-54 (1975).
"A party asserting the work product privilege bears the burden of establishing that the
documents he or she seeks to protect were prepared 'in anticipation of litigation.'" United
States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006). In the Sixth Circuit, materials were
prepared in "anticipation of litigation" if they were prepared "because of" litigation. Id. A
document was prepared "because of" litigation if it was (1) created because of a party's
subjective anticipation of litigation, as contrasted with an ordinary business purpose, and
(2) if subjective anticipation of litigation was objectively reasonable. Id. Under that
standard, "[i]t is clear that documents prepared in the ordinary course of business, or
pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes,
are not covered by the work product privilege." Id.
Courts have identified two types of work product, which are entitled to different
degrees of protection. In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir. 1986). The
first is "fact" work product, which is "written or oral information transmitted to the attorney
and recorded as conveyed by the client." Id. "Fact" work product may be obtained upon
a showing of substantial need and inability to otherwise obtain without material hardship.
In re Columbia, 293 F.3d at 294. The second is "opinion" work product, which is "any
material reflecting the attorney's mental impressions, opinions, conclusions, judgments or
legal theories." In re Antitrust Grand Jury, 805 F.2d at 163 (citations omitted); see also
Fed. R. Civ. P. 26(b)(3)(B). "Opinion" work product may be obtained only upon waiver. In
re Columbia, 293 F.3d at 294.
BAE argues that the discovery it seeks does not qualify as either type of work product
because it was not prepared in "anticipation of litigation." Specifically, BAE contends: "The
documents and communications at issue do not qualify as work product because they were
'prepared in the ordinary course of business' and were made in response to 'public
requirements unrelated to litigation.'" (Dkt. 38, at 30.) The Government responds that
"[t]he dispositive question is not whether a document was created for some 'public
requirement' but whether it was created in anticipation of litigation." (Dkt. 47, at 26.)
However, as quoted above, the Sixth Circuit has stated that materials were not created in
anticipation of litigation if they were created "in the ordinary course of business, or pursuant
to public requirements unrelated to litigation, or for other nonlitigation purposes."
Roxworthy, 457 F.3d at 593. Thus, the Government's argument misses the mark.
The Government next maintains that the materials were not created in the ordinary
course of business or pursuant to a public requirement because "Ms. Jones had no duty
to act on a claim that was already the subject of a contracting officer's final decision." (Dkt.
47, at 26.) But the ASBCA has issued decisions that persuade the Court otherwise. In
Appeal of Space Age Eng'g, Inc., the ASBCA stated the following regarding a contracting
officer's obligation to correct a final decision:
In our judgment the contracting officer not only is permitted to correct an
erroneous ‘final decision’ but has an obligation to do so. The contracting
officer, when considering claims, serves in a quasi-judicial capacity. He has
an obligation to consider all of the relevant and material evidence and to
make findings of fact, and to apply the law to the facts found and render a
fair, impartial and informed judgment. When a judgment is rendered which
is not a fair, impartial and informed one, he has a duty to correct it.
82-1 B.C.A. (CCH) ¶ 15766 (ASBCA No. 26028, 1982). Then, in a later case, the ASBCA
found that those same considerations applied when a contracting officer rescinded a final
decision. Appeal of Daniels & Shanklin Const. Co., 89-3 B.C.A. (CCH) ¶ 22060 (ASBCA
No. 37102, 1989). The Court accordingly rejects the Government's argument that Ms.
Jones had no duty to act on a previously issued final decision.
In rescinding the final decision and demand letter, Ms. Jones was acting "pursuant to
public requirements unrelated to litigation" or in the contracting officer's "ordinary course
of business." Roxworthy, 457 F.3d at 93. As a result, the Court finds that the fact
assessment adopted by Ms. Jones was not prepared "because of" litigation, and the
discovery sought by BAE does not fall within the purview of the work product doctrine. See
Judge Advocate General's School Contract Attorney's Deskbook at 22-25, § F.2 (2014)
(citing the ASBCA precedent discussing a contracting officer's obligation to reconsider
erroneous final decisions); see also Weston/Bean Joint Venture v. United States, 128 Fed.
Cl. 1, 5 (2014) (finding that "documents addressed to the validity of the plaintiff's
administrative claims would have been created whether or not the claims ultimately ended
up in litigation and so were not prepared 'because of' anticipated litigation"); Gulf Grp., 98
Fed. Cl. at 652 (finding that the work product doctrine did not cover an attorney's work in
helping a contracting officer prepare his final decisions); Northrop Grumman Corp. v. United
States, 80 Fed. Cl. 651, 654-55 (2008) (holding that "papers were not created because of,
or primarily in anticipation of litigation" where "the primary motivational purpose for the
creation of [the documents] was for use by the contracting officer ... to review plaintiff's
complex claims and to prepare his contracting officer's final decision.").
For the foregoing reasons, the Court concludes that neither the attorney-client
privilege nor work product doctrine covers the discovery sought by BAE. Therefore, BAE's
motion to compel is GRANTED. The Government has thirty (30) days from the issuance
of this order to respond substantively to BAE's discovery requests regarding the facts,
reasons, opinions, and analysis underlying Ms. Jones' decision to rescind the demand letter
and final decision.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: April 25, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on April 25, 2017, by electronic and/or ordinary mail.
s/Kelly Winslow for
Carol J. Bethel, Case Manager
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