Triax Co. v. United States

33 Cont. Cas. Fed. 74,663, 11 Cl. Ct. 130, 1986 U.S. Claims LEXIS 783
CourtUnited States Court of Claims
DecidedOctober 21, 1986
DocketNo. 238-85C
StatusPublished
Cited by8 cases

This text of 33 Cont. Cas. Fed. 74,663 (Triax Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Triax Co. v. United States, 33 Cont. Cas. Fed. 74,663, 11 Cl. Ct. 130, 1986 U.S. Claims LEXIS 783 (cc 1986).

Opinion

ORDER

SETO, Judge.

This government contract case comes before the court on three discovery motions, specifically, plaintiff’s motion to compel production of documents and defendant’s motions to stay discovery and for an order protecting from burdensome and duplicative discovery requests. For the reasons discussed below, we GRANT in part and DENY in part plaintiff’s motion to compel, DENY defendant’s motion to stay discovery, and GRANT in part and DENY in part defendant’s motion for a protective order. In the interests of judicial economy and efficiency, the court further ORDERS that this claim shall be transferred, pursuant to the Contract Disputes Act of 1978, 41 U.S.C. § 609(d) (1982), to the Armed Services Board of Contract Appeals (ASBCA) and consolidated with plaintiff’s claims that are pending before that board.

BACKGROUND

Underlying this action is the claim that the Air Force allegedly breached and changed terms of a construction contract, and caused a constructive work stoppage that resulted in over $2,000,000 in damages to plaintiff. Plaintiff moved for summary judgment on November 29, 1985; defendant opposed the motion and cross-moved for summary judgment. Pending the court’s ruling on the summary judgment motions, plaintiff requested documents housed at Scott Air Force Base, Illinois (Scott AFB). Defendant asserted that the attorney-client privilege and work product rule protected some of the requested documents from disclosure, and plaintiff moved to compel their production. Defend[132]*132ant then moved to stay discovery pending outcome of the summary judgment motions and for an order protecting from burdensome and duplicative discovery requests. An oral argument on the discovery motions was heard on September 17, 1986, after which counsel briefed the court on issues raised at the argument. Having had the benefit of oral argument, supplemental briefs and responses, and an in camera review of documents alleged to be privileged or irrelevant, the court, at plaintiffs request, is prepared to rule on the discovery motions before transferring the case to ASBCA pursuant to section 609(d). Privileged Communications and Work Product

In response to plaintiff’s motion to compel production of documents, defendant asserts that certain documents are exempt from discovery under the attorney-client and work product rule privileges. In compliance with the court’s September 24, 1986 order, defendant has submitted for in camera review the documents claimed as privileged and identified the reasons that warrant their confidentiality. Defendant asserts that the documents it seeks to protect contain attorney-client communications that were made to obtain legal advice with the expectation of confidentiality. Natta v. Hogan, 392 F.2d 686, 691-93 (10th Cir. 1968); American Optical Corp. v. Medtronic, Inc., 56 F.R.D. 426, 430 (D.Mass. 1972); Defendant’s Brief at App. 1-2 (affidavits of two Air Force contracting officers attesting that disclosures made with expectation of confidentiality). Plaintiff contends that an essential element of the attorney-client privilege, confidentiality, is lacking in respect to the documents. See In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir.1975); United States v. United Shoe Machinery Corp., 89 F.Supp. 349, 357, 358-59 (D.Mass.1950). Plaintiff also avers that privilege exists only to encourage disclosures by clients to attorneys and therefore the privilege should not be recognized in the instant case. See Fisher v. United States, 425 U.S. 391, 403-04, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). We disagree.

Our review of the documents belies plaintiff’s allegation that the communications were for general use and not made with an expectation of confidentiality. See Defendant’s Brief at App. 1-2. The documents contain legal advice and other information concerning the contract dispute that can be intended only for use of those involved in resolving the dispute or providing information toward that end. Moreover, the attorney-client privilege extends to communications between attorneys and between attorneys and their clients. See Upjohn Co. v. United States, 449 U.S. 383, 394-95, 101 S.Ct. 677, 685, 66 L.Ed.2d 584 (1981) (communications between corporate employees and counsel to allow corporation to obtain legal advice are protected); Natta v. Zletz, 418 F.2d 633, 637 (7th Cir.1969) (correspondence between house and outside counsel for legal advice and assistance clearly protected). In the instant case, the scrutinized communications were between government attorneys or between government agents and attorneys. Therefore, these communications fall within the ambit of the attorney-client privilege and are protected from disclosure.

Defendant also asserts that several of the documents are privileged under the work product rule as well. See Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947) (attorney’s mental impressions, conclusions, opinions and legal theories protected from disclosure); RUSCC 26(b)(2). Defendant avers that this privilege extends to documents prepared by individuals other than an attorney. RUSCC 26(b)(2) (work product of “other representative of a party” protected); United States v. Nobles, 422 U.S. 225, 238-39, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975) (work product rule protects material prepared by agents for attorney). Plaintiff rejoins that the documents contain only “summarized advice of counsel” that was “used in public documents,” thereby waiving the claim of work product. Plaintiff’s Brief at 12; In re Subpoena Duces Tecum to Fulbright and Jaworski, 99 F.R.D. 582, [133]*133aff'd, 738 F.2d 1367 (D.C.Cir.1983). We disagree. We have reviewed the documents and find defendant’s claim of work product well founded. The material contained in the documents contains opinions and legal theories on the posture of this claim and therefore shall be protected from disclosure. Further, plaintiff has not adduced proof that the information was in fact used in public documents.

The following documents are protected from discovery under the attorney-client privilege, and when indicated, under the work product rule.

—Item Numbers 49 and 179, which request the same document.
—Item Number 73.
—Item Number 85.
—Item Number 86.
—Item Number 99.
—Item Number 100.
—Item Number 107.
—Item Number 110.
—Item Numbers 111 and 209, which request the same document.
—Item Number 208.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jo Ann Howard & Associates, P.C. v. Cassity
303 F.R.D. 539 (E.D. Missouri, 2014)
Dairyland Power Cooperative v. United States
79 Fed. Cl. 709 (Federal Claims, 2007)
JZ Buckingham Investments LLC v. United States
78 Fed. Cl. 15 (Federal Claims, 2007)
First Heights Bank, FSB v. United States
46 Fed. Cl. 827 (Federal Claims, 2000)
Sparton Corp. v. United States
44 Fed. Cl. 557 (Federal Claims, 1999)
CIT Group/Equipment Financing, Inc. v. United States
24 Cl. Ct. 540 (Court of Claims, 1991)
Glendale Joint Venture v. United States
34 Cont. Cas. Fed. 75,375 (Court of Claims, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
33 Cont. Cas. Fed. 74,663, 11 Cl. Ct. 130, 1986 U.S. Claims LEXIS 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triax-co-v-united-states-cc-1986.