The agency accidentally disclosed an attorney-client email to a claimant. The claimant said the communication wasn’t privileged. But the court ordered the claimant to destroy the email. The email contained legal advice, and the agency had not waived the attorney-client privilege.
Advance Business Capital, LLC v. United States, COFC No. 21-1786C
- The Privileged Communicaiton – The government stopped making payments to the assignee of a government contract. The assignee sued. During discovery, the government accidentally disclosed an email from agency counsel to agency employees. In the email, counsel discussed the agency’s posture with respect to the litigation. The agency asserted the email was privileged. The claimant asked the court to declare the email wasn’t privileged.
- Email Was Privileged – The claimant argued the email wasn’t privileged because it contained business, not legal advice. The court disagreed, finding the email assessed litigation risks and the legal consequences of the agency’s actions. This was a paradigmatic legal communication.
- “At Issue” Waiver – The claimant argued the agency had waived the attorney-client privilege by placing the contents of the letter “at issue” in the litigation. The court, however, found the agency had merely acted in accordance with the advice in the letter. It had not asserted a claim, or a defense based on that advice. The agency had not placed the contents of the letter at issue.
- Lower-Level Managers – The claimant maintained the agency had waived the attorney-client privilege by sending the email to lower-level managers within the agency who did not make legal decisions. The court didn’t think the email had been sent to lower-level managers. Rather, the email was sent to the officials responsible for managing the contract.
The claimant is represented by Michael J. Schrier of Husch Blackwell LLP and Jared A. Ullman and Michael W. Ullman of Ullman & Ullman, PA. The government is represented by A. Bondurant Eley, Brian M. Boynton, Patricia M. McCarthy, and Deborah A. Bynum of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
