Renda Marine, Inc. v. United States

62 Fed. Cl. 371, 2004 U.S. Claims LEXIS 261, 2004 WL 2267195
CourtUnited States Court of Federal Claims
DecidedSeptember 29, 2004
DocketNo. 02-306-C
StatusPublished
Cited by2 cases

This text of 62 Fed. Cl. 371 (Renda Marine, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Renda Marine, Inc. v. United States, 62 Fed. Cl. 371, 2004 U.S. Claims LEXIS 261, 2004 WL 2267195 (uscfc 2004).

Opinion

ORDER

HEWITT, Judge.

Defendant seeks to protect certain electronic mail (“e-mail”) messages from disclosure on the grounds of attorney-client and work product privileges. Now before the court are both complete and redacted copies of the documents attached in redacted form at pages 56 through 101 of the appendix to Defendant’s Response to Plaintiffs Motion to Compel dated April 30, 2004. Pursuant to [372]*372the court’s Order dated May 14, 2004, these documents were submitted in unredacted form for an in camera inspection. After an initial review, the court ruled on the admissibility of eight of the submitted documents in an Order dated July 28, 2004. To help it determine the status of the remaining submissions, a collection of electronic mail (“email”) communications, the court requested that defendant provide, in camera and in writing, the following additional information:

(A) a full description of the role and duties of each and every transmitter and recipient of each communication with respect to the pending litigation, including specifically whether any person is an attorney and the role of the attorney in the litigation, and
(B) an explanation and any relevant authority as to why the redaction is privileged.

Order dated July 28, 2004. Defendant has complied with the court’s order. Upon review of the defendant’s submission, and for the following reasons, the court ORDERS the DISCLOSURE of some, but not all, of the documents as follows:

I. September 2002 Freedom of Information Act (“FOIA”) E-mails (Documents 74, 90, 91, 92)

Documents 74, 90, 91, and 92 contain e-mail communications that were sent between September 4 and September 6, 2002. These messages appear to respond to an initial e-mail titled “Freedom of Information Act Request # 2002-95,” which provided notice that plaintiff’s counsel had initiated a FOIA request “to review and copy and [sic] Audit of any Claims by Renda Marine, Inc. under Contract No. DACW64-99-C-0001.”

A. Document No. 74 [RM-GAL-0020058-62] contains a series of ten e-mail communications. Two messages, both titled “RE: Freedom of Information Act Request #2002-95,” have been redacted.

1. The first1 redacted message, which appears on pages 59-60, was sent by a senior attorney in the Office of Counsel for the Corps of Engineers (“Corps”), Galveston District. The attorney sent this message to two subordinate attorneys and a paralegal in the same office, as well as to the Contracting Officer for the Upper Bayou Project.

This message subsequently was forwarded to (i) four employees of the Bay Area Office and the Engineering & Construction Division of the Corps of Engineers, Galveston District, and (ii) a consultant employed by the government to provide defendant’s counsel with litigation support services in this case. The non-redacted material in this document indicates that, after receiving this forwarded message, these individuals contacted the senior attorney to discuss the salient issues in the e-mail string.

Although the title of this e-mail references plaintiffs FOIA request, the content of the communication implicates the present case in all significant disclosure requests. Because this e-mail incorporates attorney-client communication concerning the present ease, it is PRIVILEGED. See Deuterium Corp. v. United States, 19 Cl.Ct. 697, 700 (1990) (“The [attorney-client] privilege also applies to communications with other agency lawyers who provide legal counsel in connection with the impending litigation.”); Eagle-Picher Indus., Inc. v. United States, 11 Cl.Ct. 452, 456 (1987) (noting that “the privilege extends to legal advice by the attorney, not only confidential communications by the client”); Gen. Elec. Co. v. United States, 176 U.S.P.Q. 83, 85[, 1972 WL 17669] (Ct.Cl.1972) (“The underlying purpose of the [attorney-client] privilege is to protect and foster confidential communication from client to attorney to ensure full and free disclosure. Whether the client first approaches the attorney to make such disclosure or the attorney requests relevant information from the ‘client’ does not alter the basic [373]*373soundness of this principle.”) (citation omitted).

The dissemination of this message to non-lawyer employees and agents of the Corps does not alter the privileged status of the communication. See Deuterium, 19 Cl.Ct. at 699 (applying by analogy the United States Supreme Court’s rationale in Upjohn Co. v. United States, 449 U.S. 383[, 101 S.Ct. 677, 66 L.Ed.2d 584] (1981) to the governmental context, and emphasizing that the attorney-client privilege applies to communications to and from “Government employees at all levels,” just as it applies to communications from mid-level and lower-level employees in a corporation).

2. However, the second e-mail, which appears on page 60 and contains nine redacted lines following the words, “Tom Benero,” does not appear to reflect either attorney work product or attorney-client privileged communication. Although the redacted text incorporates a legal phrase, the message appears solely to concern the agency’s internal management of the FOIA process, see generally 5 U.S.C. § 552 (2004), rather than its management of the instant case. Accordingly, this redacted portion is NOT PRIVILEGED.

B. Document No. 90 [RM-GAL-0022896-97] contains a series of six e-mail communications. This document, which appears to be an earlier-in-time version of the e-mail string in Document No. 74, was initiated and received by the same individuals, and redacts the same two email messages, as Document No. 74.

1. The redacted message on page 66 is identical to the redacted message on pages 59-60 of Document No. 74. For the reasons stated above, this message is PRIVILEGED.

2. The redacted text on page 66-67, which appears after the words, “Tom Benero,” is identical to the redacted text that appeared in the middle of Document 74, page 60. For the reasons stated above, this nine-line redaction is NOT PRIVILEGED.

C. Document No. 91 [RM-GAL-0022904-05] contains a series of six e-mail communications. This string of e-mails was initiated and received by the same individuals as Document No. 74, and redacts the same two e-mail messages as Document No. 74, plus a third message.

1. The first redacted e-mail, which appears at the top of page 68, was sent by a senior attorney in the Office of Counsel for the Corps of Engineers to a subordinate attorney in the same office and to an engineer who served as the Administrative Contracting Officer for the Upper Bayou Project.

The first sentence of this e-mail does not appear to reflect either attorney work product or attorney-client privileged communication, and is NOT PRIVILEGED. The remainder of this message incorporates attorney-client communication concerning the present case, and is PRIVILEGED.

2. The second redacted e-mail, which appears in the middle of page 68 is identical to the redacted message on pages 59-60 of Document No. 74. For the reasons stated above, this message is PRIVILEGED.

3. The third redacted e-mail, which appears on pages 68-69 following the words, “Tom Benero,” is identical to redacted e-mail that appears in the middle of Document 74, on page 60.

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Cite This Page — Counsel Stack

Bluebook (online)
62 Fed. Cl. 371, 2004 U.S. Claims LEXIS 261, 2004 WL 2267195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/renda-marine-inc-v-united-states-uscfc-2004.