214 Ct. Cl. 765 | Ct. Cl. | 1977
"This matter is before the court on defendant’s request for review of Trial Judge Spector’s denial of defendant’s motion for a protective order covering three documents copies of which were inadvertently turned over to plaintiffs counsel in the course of discovery.
I used that list when asked to copy the copies of the privileged documents found by plaintiffs’ counsel in the material I supplied them for inspection. The 'Lynn list’ contains no reference to either the July 19, 1974 memorandum or '8/23/74’ routing slip. Thus I had no qualms about their release. Since the original of the August 19, 1974 memorandum is stapled to the '8/23/74’ routing slip as were to the best of my recollection the*767 copies copied, I can only assume that I viewed the package as unitary, did not note the dates of individual documents attached to the routing slip, and since the routing slip was not listed felt it was safe to supply copies of it and its attachments.’
"On the basis of these facts the defendant moved for a protective order requiring the return, non-disclosure, and non-use in evidence of the three documents. Accepting defendant’s claim that the disclosure was inadvertent, Trial Judge Spector nevertheless held that any claimed privileges had been lost by virtue of the disclosure even though inadvertent. A precisely similar problem had arisen in National Helium Corp. v. United States, No. 158-75, and the defendant had made a similar motion for a protective order. On July 9, 1976, Trial Judge Schwartz granted the motion; there was no request for review of that order. Trial Judge Spector acknowledges that his order is in 'fundamental disagreement’ with that of Trial Judge Schwartz.
"We hold that the requested protective order should have been issued in this case as well as in National Helium.
"Since the three documents were all claimed under the attorney-client privilege and the law of disclosure has had
"Here, the Assistant General Counsel of OMB was plainly not the client — i.e. the United States or the Federal Government — in any sense. His was only the ministerial duty of turning over documents not listed in claims of privilege previously made by others in the Federal Government who had substantive concern with the litigation and with possible claims of privilege. Those other officials never in the slightest gave any indication of waiving the privilege or withdrawing the claim. The Assistant General Counsel may have been acting as a lawyer, but his duties and his scope were very tightly restricted; he had no authority, express or implied, to determine what was privileged, to
"it is therefore ordered and concluded that the Trial Judge’s order of January 13, 1977 is reversed and the defendant’s motion for a protective order is granted.”
This request for review does not involve at all the issue of whether privilege was properly claimed for the three documents now involved. The only current question is, assuming arguendo that the documents were privileged, did their inadvertent disclosure waive or dissipate the privilege?