219 Ct. Cl. 612 | Ct. Cl. | 1979
We are asked by the defendant to reverse Trial Judge Spector’s procedural order denying defendant’s second motion for production of ten specified documents.
In seeking to overturn the trial judge’s order in this case, the Government does not contend that the documents were never privileged but urges only that any privilege was waived when defendant’s representative was allowed to see them. From an uncontradicted affidavit by plaintiffs house or local counsel (Mr. Conoley), we take the facts to be as follows:
The overriding principle is that only the client can waive the attorney-client privilege. Cities Service Helex, Inc. v. United States, supra, 214 Ct. Cl. at 768. However, a disclosure by the client, even if not specifically intended, can be a waiver in certain circumstances. See United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461 (E.D. Mich. 1954); Underwriter Storage Inc. v. United States Rubber Co., 314 F.Supp. 546 (D.D.C. 1970). Here, the client — plaintiff National Helium Corporation — actively sought, through Messrs. Conoley and Burrows, to keep all attorney-client documents from inspection by defendant. A procedure to effectuate that purpose was established and followed, but it failed as to these ten writings, without the knowledge or acquiescence of those who were supposed to screen out such privileged material. It seems clear to us that, as a subjective matter, plaintiff wished to retain its privilege as to all attorney-client documents. The only question is whether the procedure followed by plaintiff was so lax, careless, or inadequate that plaintiff must objectively be considered as indifferent to disclosure of anything which happened to be shown to the Government.
Defendant indicts the plaintiff as showing a lack of care and general indifference because it did not screen all the
This is not as compelling a case for retention of the privilege as Cities Service Helex, Inc., supra.
it is therefore ordered that Trial Judge Spector’s order of November 30, 1978, denying defendant’s second motion for production of documents is affirmed and said second motion is denied.
Although the trial judge did not certify the question under Rule' 53(c)(2)(i), we accept the request for review under Rule 53(c)(2) (ii) and consider it on its merits.
Plaintiff has supplied copies of all the other documents inspected by defendant’s counsel.
Defendant characterizes the statements in this affidavit as "post hoc rationalizations,” but we must accept these sworn statements, which appear credible, in the absence of anything tending to discredit them. See also footnote 5, infra.
There is no suggestion that Mr. Conoley personally reviewed any documents other than those he had reason to believe were attorney-client writings, through flagging by Mr. Burrows or otherwise.
Discovery is already expensive enough, in many cases, without adding to its cost by the detailed screening of masses of documents which defendant says is always required, on pain of losing a privilege. A flat requirement of document-by-doeument screening would probably help avoid some camouflaged changes of mind by the document-possessor but the price of such across-the-board preventive hygiene seems to us too high, especially in a case like this in which we have no reason to doubt plaintiffs indication that it would have screened out the ten documents if they had been discovered before inspection.
Defendant points out that, at the time the documents were handed over for inspection, plaintiff made no reservation that privilege might later be asserted. Obviously that was because plaintiff mistakenly though that it had already picked out all attorney-client writings. Moreover, we do not see how such a general reservation, unrelated to specific papers, would have aided defendant in any material way.
There, the Government had previously claimed the privilege as to the particular documents, the Government and its clearly authorized legal representatives always intended to retain that privilege for the specific documents, and the Assistant General Counsel of the Office of Management and Budget who physically handed them over had only ministerial authority to pass on documents as to which no privilege was claimed by the proper representatives of the Federal Government.
Neither party contends that there are different rules for attorney-client writings, on the one hand, and for attorney work-product materials, on the other. Argument has been wholly in terms of the attorney-client privilege. Thus, we have treated the case as if only that type privilege is involved (though it may be that both types of document are in fact among the ten).