110 Fed. Cl. 87
Fed. Cl.2013Background
- Oasis seeks to prevent redactions and for the court to substitute redacted pages from a Memorandum for Record (MFR) in the Joint Appendix.
- The MFR discusses the 11th modification of a government contract and contains four passages allegedly reflecting attorney‑client communications.
- The government seeks to redact passages under the attorney‑client privilege; Oasis argues there is no privileged content or there was waiver.
- The court conducted in-camera review and identified which passages are privileged and which are not, and analyzed waiver implications under Rule 502 and related caselaw.
- The court defines a partial waiver and orders redactions and disclosures to conform with its ruling, while addressing clawback provisions and the scope of any subject‑matter waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first passage is privileged | Oasis argues it contains non-legal business content not protected by privilege | United States contends the passage reflects legal advice and is privileged | First passage privileged; redacted in part. |
| Whether the second passage is privileged | Content is not a direct or indirect disclosure of legal advice | Passage reflects legal review consistent with privilege | Second passage not privileged. |
| Whether the third passage is privileged and scope of redactions | Some sentences disclose privileged legal advice | Several sentences reflect legal advice; others are non‑privileged | First four sentences of third passage privileged; fifth sentence not; partial redaction allowed. |
| Whether the fourth passage is privileged and whether waiver applies | Disclosures by government personnel in 2006–2007 operate as waiver | Authority to waive resides in appropriate government actors; Jenkins lacked authority | Fourth passage not privileged; waiver not extended; partial prior disclosures deemed waiver for limited portions; overall waiver not imposed. |
| Whether prior disclosures cause subject‑matter waiver of related content | Prior production of partially redacted MFR implies broad waiver | Waiver limited by fairness; not all related content should be barred | Subject‑matter waiver not extended to entire MFR; fairness controls scope. |
Key Cases Cited
- Fisher v. United States, 425 U.S. 391 (1976) (confidential disclosures for legal advice privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (privilege protects attorney advice and related communications)
- Genentech, Inc. v. U.S. Int'l Trade Comm'n, 122 F.3d 1409 (Fed. Cir. 1997) ( Privilege scope includes government communications)
- Yankee Atomic Elec. Co. v. United States, 54 Fed. Cl. 306 (2002) (disclosure of legal consultation may be privileged; context matters)
- In re Spalding Sports Worldwide, Inc., 203 F.3d 800 (Fed. Cir. 2000) (overall tenor controls privilege application; not dissecting every sentence)
- Fort James Corp. v. Solo Cup Co., 412 F.3d 1349 (Fed. Cir. 2005) (subject‑matter waiver and fairness considerations in disclosure)
- In re EchoStar Commc’ns Corp., 448 F.3d 1294 (Fed. Cir. 2006) (limits of selective waiver; fairness governs scope)
- In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) (rules for determining scope of waiver and use of unfair advantage)
- Energy Capital Corp. v. United States, 45 Fed. Cl. 481 (2000) (test for distinguishing legal vs. business advice in privilege)
- United States v. Chen, 99 F.3d 1495 (9th Cir. 1996) (tests for identifying whether advice is legal")