MOTION TO COMPEL DENIED:  March 7,  2007 
CBCA 95 
MOUNTAIN VALLEY LUMBER, INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Alan I. Saltman and Richard W. Goeken of Saltman & Stevens, PC, Washington, DC, 
counsel for Appellant. 
Kenneth S. Capps, Office of the General Counsel, Department of Agriculture, 
Denver, CO; and Jennifer T. Newbold, Office of the General Counsel, Department of 
Agriculture, Missoula, MT, counsel for Respondent. 
POLLACK, Board Judge. 
The Forest Service (FS) of the United States Department of Agriculture (USDA) 
awarded Mountain Valley Lumber, Inc. (MVL) the Three Mile Timber Sale on May 26, 
1999.  The FS suspended the contract on October 4, 1999.  The suspension continued until 
October 29, 2001, when it was lifted.  The FS suspended the contract based on an adverse 
decision by the United States District Court in Heartwood v. United States Forest Service, 
73 F. Supp. 2d 962 (S.D. Ill. 1999), aff’d, 230 F.3d 947 (7th Cir. 2000). The complaint was 
filed in Heartwood on September 16, 1998.  There, plaintiffs essentially challenged the FS 
adoption of a Categorical Exclusion (CE) for a number of management activities.   

 
  
    
      
 
 
 
 
 
   
 
     
 
   
  
  
 
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The discovery road in this case has not been smooth.1  On June 30, 2005, Judge Anne 
Westbrook of the Department of Agriculture Board of Contract Appeals issued a decision 
in which she addressed disputes regarding various documents for which the FS claimed 
privilege.  After her retirement, I took over as presiding judge.  I then also issued rulings 
dealing with discovery.  Those included a ruling on intervention dated January 12, 2006; a 
ruling dated January 13, 2006, on a Motion for Reconsideration of Judge Westbrook’s 
earlier ruling; then a ruling (unpublished) dated March 24, 2006, dealing with various 
documents for which the FS sought protection under privileges; and then another, dated 
July 18, 2006, which addressed documents held by the Department of Justice (DOJ) and 
Council on Environmental Quality (CEQ), documents which DOJ had refused to produce. 
That last ruling provided that the board would draw certain adverse inferences because of 
DOJ’s failure to provide various documents.  On August 2, 2006, DOJ, while still 
contending that the board had no jurisdiction to require documents under subpoena, did 
provide a privilege log identifying and describing eight documents.  More detail as to the 
privileges claimed is set out below.  Along with that log was “Declaration of Matthew J. 
McKeown In Support of Department of Justice Claim of Privilege.”  Mr. McKeown is 
Principal Assistant Attorney General of the Environmental and Natural Resources Division 
of the Department of Justice. 
At that point, it appeared that the issues as to DOJ discovery may have been resolved. 
However, on September 15, 2006, the board received the appellant’s Motion to Compel 
Production of Documents on the Government’s Privilege Log of August 2, 2006.  There 
appellant asked the board to direct DOJ to produce the documents to appellant or, in the 
alternative, have the board review the documents in camera . 
The privilege log, provided by DOJ, identifies eight documents and is accompanied 
by a declaration from Mr. McKeown.  In his declaration, Mr. McKeown addressed the 
processes within DOJ as to the creation of the documents and provided explanation to 
support his statements that all documents were privileged as work product and attorney-
client documents. Additionally, in the case of Documents 6 through 8, he stated that they 
also qualified under the deliberative process exception.  Each of the eight documents was 
identified by date and each identified the individuals who created and received the document 
or documents.  Mr. McKeown also included a narrative as to each document, further 
identifying its form and describing the general subject matter each addressed. 
1 Several decisions involving discovery disputes have been published.  Mountain 
Valley Lumber, Inc., AGBCA 2003-171-1, 06-1 BCA ¶ 33,172; 06-1 BCA¶ 33,173; 06-2 
BCA ¶ 33,339. 

      
 
 
 
 
  
 
    
   
    
     
    
        
        
   
       
 
     
3 CBCA 95 
In its motion, appellant makes several arguments in support of its request that the 
documents be produced and released to it.  Those arguments address the use of the 
deliberative process privilege, the attorney-client privilege, and the work product privilege. 
Regarding the documents identified as attorney-client, appellant alleges that the Government 
has failed to carry its burden of establishing that the documents are protected by attorney-
client privilege because, among other deficiencies, the Government has failed to prove that 
the documents contain protected communication between a client and its attorney.  In regard 
to the work product exception, appellant asks the Board to find that either the work product 
doctrine does not extend into what appellant describes as “this subsequent litigation,” or 
alternatively, find that based on the circumstances of the case, the Government assertion of 
the work product doctrine is outweighed by MVL’s evidentiary need for the documents. 
Appellant asks that the Board order the production of the eight documents or, alternatively, 
that the Board examine the documents in camera to determine whether portions of the 
documents meet the elements of each privilege.    
Several comments as to the documents need to be made for purposes of  background 
and context. Documents 1 and 2, each identified as e-mails, were dated November 12, 1998. 
The remaining documents carry various dates, the earliest, Document 3, being December 12, 
1998, and the last, Document 8, being January 19, 2000.  As to each document, all senders 
and receivers are identified as attorneys with DOJ, including the Solicitor General, who was 
sent Document 8.   
Document 1 was described as two e-mails, each of which discussed the issue of 
whether the National Environmental Policy Act (NEPA) required the preparation of a NEPA 
document before the promulgation of regulations related to the use of a CE.  Mr. McKeown 
further stated that the documents also reflected the substance of discussions with USDA. 
Document 2 was described as two e-mails. They regarded identification and interpretation 
of cases which considered the issue of whether NEPA required the preparation of a NEPA 
document before the promulgation of a CE.  The description did not reference that it 
reflected discussions with USDA. 
Document 3 was described as two e-mails.  It was titled, “Categorical Exclusion 
litigation.”  The description noted that there was an attached memorandum regarding DOJ 
preparation to defend the Heartwood case, analysis of the applicability of NEPA to the 
promulgation of the CE, discussion of litigation risks, and analysis of settlement options. 
Mr. McKeown further noted that the documents reflected the substance of discussions with 
CEQ and USDA.  Document 4 was described as a memorandum which contained case 
background, merits of the case, analysis of NEPA, and case settlement possibilities.  The 
document also reflected the substance of discussions with USDA.  Document 5 was 
described as a duplicate of Document 4, with the difference being a different font and some 

      
 
  
       
     
 
 
 
     
          
  
   
        
   
 
   
 
 
 
       
 
4 CBCA 95 
writing of a date in unknown handwriting.  Document 6 was several e-mails and concerned 
a discussion of the district court’s decision on cross-motions for summary judgment.  It also 
dealt with procedural matters as to an appeal.  Document 7 was a memorandum containing 
an appeal recommendation evaluating the merits of the appeal and probability of success. 
It also reflected the substance of discussions with USDA. Document 8 was a memorandum 
regarding the appeal recommendation which evaluated and analyzed the merits of an appeal. 
It also reflected the substance of discussions with USDA. 
It is clear from the descriptions provided in the declaration from Mr. McKeown that 
each document involves the matters at issue in the Heartwood case, and that DOJ was then 
acting in its capacity as the attorney responsible for representing USDA in that matter.  As 
Mr. McKeown pointed out, under 28 U.S.C. § 516 (2000), the conduct of litigation in which 
the United States, an agency, or an officer thereof is a party is reserved to officers of DOJ 
under the direction of the Attorney General. DOJ was in that mode as to Heartwood, 
starting at least in September 1998, which was prior to the date that any of the listed 
documents was prepared. 
Appellant’s request for relief challenges claimed protections under attorney-client, 
work product, and deliberative process exceptions.  I will not here address or analyze the 
issues as to the deliberative process or attorney-client privileges.  That is because, as set out 
below, I find that the work product privilege is applicable for each document and thus an 
analysis of the deliberative process and attorney-client privileges is not necessary for this 
ruling. 
As to the work product privilege, appellant argues that the work product doctrine 
does not extend into this appeal since this appeal is subsequent litigation to the litigation for 
which the documents were produced.  Appellant also argues that based upon the 
circumstances in this case, the Government’s assertion of the work product doctrine is 
outweighed by MVL’s evidentiary need for the documents.  Finally, appellant argues that 
if the Board initially finds privilege, then the Board should view the documents in camera 
to determine if any portion actually meets the elements of each privilege or doctrine and then 
order the production of the documents, with the truly privileged portions, if any, redacted. 
All eight of the documents at issue have been generated by attorneys of DOJ and 
received by attorneys at DOJ.  All of the documents are either described as involving 
discussions of the issues before the court in Heartwood or, in the case of Documents 1 and 
2, show that by context. All of the documents post-date the filing in Heartwood.  None of 
the exchanges are between individuals outside of DOJ.  Clearly the documents qualify as 
work product.  To find or suggest that DOJ was preparing the documents for some purpose 
other than as part of the litigation is simply not a reasonable conclusion to be drawn. 

  
 
 
 
 
 
  
 
   
 
  
  
 
 
      
  
     
   
     
 
       
 
 
  
5 CBCA 95 
Attorney-client and work product privileges differ in a number of respects.  As 
pointed out by the FS, the attorney-client privilege protects communications by an attorney 
to a client, co-counsel, or others involved with the attorney’s legal services to the client, as 
long as those communications embody the attorney’s legal advice.  In re FiberMark, 330 
B.R. 480, 500 (Bankr. D. Vt. 2005).  Work product privilege has different elements from 
that of attorney-client.  The work product privilege is not only distinct, but also broader than 
attorney-client.  Under it, attorney work product and/or opinion work product, such as 
attorney legal strategy or evaluation of a case’s strengths and weaknesses, are almost 
absolutely privileged.  Hickman v. Taylor , 329 U.S. 495, 508 (1947); Leonen v. Johns-
Manville, 135 F.R.D. 94  (D.N.J. 1990).   
The work product privilege protects documents and tangible things prepared in 
anticipation of litigation that are otherwise non-privileged.  It protects documents such as 
memorandums, letters, and e-mails.  In re EchoStar Communications Corp.,  448 F.3d 1294, 
1301 (Fed. Cir. ) (citing Judicial Watch, Inc. v. Department of Justice, 432 F.3d 366 (D.C. 
Cir. 2005)), cert denied, 127 S.Ct. 846 (2006).  As stated by the court in EchoStar at 1301, 
“We recognize work product immunity because it promotes a fair and efficient adversarial 
system by protecting ‘the attorney’s thought processes and legal recommendations’ from the 
prying eye of his or her opponent.  Genentech[, Inc. v. United States International Trade 
Commission], 122 F.3d [1409] at 1415 [Fed. Cir. 1997].” 
Referencing Federal Rule of Civil Procedure 26(b)(3), the Court in EchoStar points 
out that the so-called “opinion” work product deserves the highest protection from 
disclosure, 448 F.3d at 1303 (citing United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 
1998)).  The EchoStar Court, in explaining the importance of the privilege, points out at 
1301 that proper preparation of a client’s case demands the attorney assemble information, 
sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, 
and plan his strategy without undue and needless interference.  The Court continued, quoting 
Hickman, 329 U.S. at 511, “Were such materials open to opposing counsel on mere demand, 
much of what is now put down in writing would remain unwritten.” 
While the sanctity of work product is clearly important, it is not absolute.  There can 
be circumstances where the disclosure of material is made notwithstanding the work product 
privilege. The  use, however, is limited, given the need and importance of protecting an 
attorney’s thought processes.  Leonen, 135 F.R.D. at 97 n.2, citing  Sporck  v. Peil, 759 F.2d 
312 (3d Cir.), cert. denied, 474 U.S. 903 (1985)). As the court said in EchoStar, a party can 
discover certain types of work product if it has “substantial need of the materials in the 
preparation of the party’s case and that  the party is unable without undue hardship to obtain 
the substantial equivalent . . . by other means.”  448 F.3d at 1302. The Court goes on to note 
that the rule: 

 
  
  
 
  
 
  
 
         
 
  
 
       
  
 
  
 
 
 
  
 
   
 
6 CBCA 95 
only allows discovery of “factual” or “non-opinion” work product and 
requires a court to “protect against the disclosure of the mental impressions, 
conclusions, opinions, or legal theories of an attorney or other 
representative.” [Fed. R. Civ. P. 26(b)(3)]; accord United States v. Adlman, 
134 F.2d 1194, 1197 (2d Cir. 1998); Martin Marrietta Corp. [v. Pollard], 856 
F.2d [619] at 626 [(4th Cir. 1988), cert. denied , 490 U.S. 1011(1989)]. 
An important element of the work product privilege is that in providing wide-
reaching protection, the work product exception, unlike other claimed privileges, does not 
distinguish between factual and deliberative material.  In the decision of the court in Judicial 
Watch, a case which was addressing a Freedom of Information Act (FOIA) dispute, the court 
made clear that the status of the work product privilege, in both a FOIA and a litigation 
situation, pulled much more than simply opinion under the umbrella.  The court made clear 
that once it is established that the work product privilege is applicable, the entire document 
is privileged.  Martin v. Office of Special Counsel , 819 F.2d 1181, 1187 (D.C. Cir. 1987). 
That is in contrast to how material may be treated under the deliberative process privilege. 
There, as the court explained in Judicial Watch , “Factual material is not protected under 
deliberative process privilege unless it is ‘inextricably intertwined’ with the deliberative 
material.”  432 F.3d at 372 (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) 
(per curiam)).  The court in Judicial Watch  pointed out that no such showing is required 
under the attorney work product doctrine, citing Martin Marrietta. Accordingly, in  Judicial 
Watch the court concluded that because the e-mails, there in issue, were attorney work 
product, the entire contents of the documents -- the facts, law, opinions, and analysis -- were 
exempt from disclosure. 
Appellant acknowledges the general impact of work product in protecting a document 
created by an attorney.  That said, however, it then sets out arguments which it contends 
allow or require the Board to release the documents in this case.  Appellant argues that even 
if the documents would qualify as work product, that does not protect the documents in 
issue because those documents were prepared for a prior case that is now complete. 
Essentially, appellant argues that since the documents were not prepared in contemplation 
of this case, the MVL contract appeal, the documents lose any privilege.  
In regard to the cases dealing with this issue, there is a three-way split of authority as 
to what standard to apply.  Federal Deposit Insurance Corp. v. Cherry, Bekaert & Holland, 
131 F.R.D. 596, 604-05 (M.D. Fla. 1990).  As set out in Leonen, 35 F.R.D. at 94, some 
courts extend the protection of the work product rule to an unrelated case, regardless of the 
lack of connection of the issues or facts between the actions.  In that regard, Leonen cited 
Panter v. Marshall Field & Co., 80 F.R.D. 718, 724 (N.D. Ill. 1978).  In Panter , the court 
stated that the weight of modern authority supports the conclusion that the work product 

 
       
  
 
      
    
     
    
    
 
 
 
   
       
    
 
 
   
    
    
7 CBCA 95 
privilege extends to documents prepared in anticipation of prior, terminated litigation, 
regardless of the interconnectedness of the issues or facts.  80 F.R.D. at 724 (citing  In re 
Murphy, 560 F.2d 326, 333-35 (8th Cir. 1977)). Other courts, including the court in Leonen 
and the court in Federal Deposit Insurance Corp. , have chosen to follow the line of cases 
which requires that there be a close connection in parties or subject matter when the 
documents are from a prior closed case.  8 Charles Alan Wright, Arthur R. Miller &  Richard 
L. Marcus, Federal Practice and Procedure: Civil 2d § 2024 (2d ed. 1994);  Jaroslawicz 
v. Engelhard Corp., 115 F.R.D. 515, 517 (D.N.J. 1987); Levingston v. Allis-Chalmers 
Corp., 109 F.R.D. 546 (S.D. Miss. 1985);  see also Hercules Inc. v. Exxon Corp. , 434 F. 
Supp. 136, 153 (D. Del. 1977).  The third alternative, the one urged by appellant, takes the 
position that the privilege applies only if the materials were prepared in anticipation of the 
very suit before the court.  Under this application, documents prepared for one case are 
discoverable in another.  See United States v. International Business Machines Corp. , 66 
F.R.D. 154, 178 (S.D.N.Y. 1974). In support of its position, appellant also cites Southern 
Union Co. v. Southwest Gas Corp ., 205 F.R.D. 542, 549 (D. Ariz. 2002), and Honeywell, 
Inc. v. Piper Aircraft Corp., 50 F.R.D. 117, 119 (M.D. Pa. 1970). 
I have examined the various cases cited, as well as a significant number of others. I 
find that the better authority and the authority with the greatest support is that the privilege 
continues notwithstanding the termination of a case.  Further, I find that the better case law 
holds that the privilege should be sustained even if the litigation is not related.   
In Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 
1973), the court said that, on balance, it thought that the legal profession and interests of the 
public were better served by recognizing the qualified immunity of work product materials 
in a subsequent case, as well as in that case for which the documents were prepared.  The 
court went on in a footnote to comment on the line of cases requiring matters to be closely 
related.  There the court said, “to dispose of this delicate and important question by such a 
technical touchstone is incompatible with the essential basis of the Hickman decision.”  Id. 
at 484 n.15.  It is of note, however, that in Duplan, the court also stated that if a party 
seeking discovery could demonstrate the substantial need and undue hardship specified in 
the rule and recognized in Hickman, the district court would order production.   
In Federal Election Commission v. Christian Coalition, 179 F.R.D. 22 (D.D.C. 
1998), the court stated, as to Federal Rule 26(b)(3): 
The text of the rule leaves three noticeable gaps: (1) whether work product 
protection extends to materials prepared for any litigation or to only materials 
prepared for the litigation that generated the work product; (2) whether work 
product protection survives termination of the litigation that generated the 

 
  
  
   
  
 
            
     
 
  
   
           
   
 
  
 
8 CBCA 95 
work product; and (3) whether materials prepared by or for a non-party for 
separate litigation should be treated as work product in subsequent or parallel 
litigation. 
Id. at 23-24.  The court then noted that different courts have come to different conclusions 
on how broadly to apply the work product privilege.  The court stated, 
The more considered view appears to be that work product protection applies 
(1) to materials prepared for any litigation, see  [Federal Trade Commission 
v.] Grolier [Inc.], 462 U.S. [19] at 26 . . .; and that (2) because the rule applies 
equally to one-time litigants and repeat players, the protection survives the 
termination of the litigation for which it was prepared, id. at 30-31. . . 
(Brennan, J. concurring). . . .  
Id. at 24. 
The above-cited reference to the concurrence of Justice Brennan in Federal Trade 
Commission v. Grolier Inc., a case which ultimately turned on a statutory interpretation of 
FOIA, is nevertheless applicable to the privilege issue in this case.  In that concurrence, 
Justice Brennan opened with the statement that he agreed wholeheartedly with the court that 
Federal Rule 26(b)(3) does not itself incorporate any requirement that there be actual or 
potential related litigation before the protection of the work product doctrine applies.  In his 
concurrence, he continued, “As the Court notes, ‘the literal language of the Rule protects 
materials prepared for any litigation or trial as long as they were prepared by or for a party 
to the subsequent litigation.’” 462 U.S. at 29. 
The district court in Information Systems, Inc. v. International Brotherhood of 
Electric Workers, 2002 WL 31093619 (S.D.N.Y. Sept. 17, 2002),  also referenced the views 
of Justice Brennan on this topic. That court quoted the following language from Grolier : 
The need to protect work product is at its greatest when the litigation with 
regard to which the work product was prepared is still in progress; but it does 
not follow that the need for protection disappears once that litigation (and any 
“related litigation”) is over. The invasion of “[a]n attorney’s thoughts, 
heretofore inviolate,” and the resulting demoralizing effect on the profession, 
are as great when the invasion takes place later rather than sooner.  More 
concretely, disclosure of work product connected to prior litigation can cause 
real harm to the interests of the attorney and his client even after the 
controversy in the prior litigation is resolved. 

 
   
  
       
   
 
  
  
        
  
 
 
     
       
 
  
      
 
 
           
9 CBCA 95 
The district court then went on to say, 
The emerging view among the circuits which have struggled with the issue 
thus far seems to be that the work product privilege does extend to subsequent 
litigation. One circuit, the Third Circuit, appears to extend the work product 
privilege only to “closely related” subsequent litigation. A broader view, 
exemplified by the Fourth, Sixth and Eighth Circuits, is that the privilege 
extends to all subsequent litigation, related or not. 
 While the court did not identify the specific authorities relied upon at the cited Circuits, but 
for the Fifth, the court did provide a list of other citations, supporting the extension of work 
product to subsequent litigation.  Among the cases cited were: Maine v. Norton, 208 F. 
Supp. 2d 63, 67-68 (D. Maine 2002); Winton v. Board of Commissioners of Tulsa County, 
188 F.R.D. 398, 401-02 (N.D. Okla. 1999); Federal Election Commission v. Christian 
Coalition, 179 F.R.D. 22,  24;  Jumper v. Yellow Corp. , 176 F.R.D. 282, 286 (N.D. Ill. 
1997); and In re Grand Jury Proceeding, 43 F.3d 966, 971 (5th Cir. 1994). 
While I have concluded that the appropriate standard is the one which does not 
terminate the privilege at the end of a case, I point out that had I opted to adopt the second 
alternative, which calls for cases or parties to be closely connected, then the documents at 
issue here would still have been protected.   
I now turn to the remaining arguments, which deal with the evidentiary need for the 
documents and the request that the Board view the documents in camera  in order to 
segregate out unprotected from protected material.  I start with Federal Rule of Civil 
Procedure 26(b)(3). As noted by the court in  Southern Union Co. v. Southwest Gas Corp., 
205 F.R.D. 542, 548 in 1970, the Supreme Court, in an effort to address inconsistent 
opinions in federal courts after Hickman v. Taylor , adopted Rule 26(b)(3).  That rule 
provides in relevant part:  
[A] party may obtain discovery of documents and tangible things otherwise 
discoverable under subdivision (b)(1) of this rule and prepared in anticipation 
of litigation or for trial by or for another party or by or for that other party’s 
representative (including the other party’s attorney, consultant, surety, 
indemnitor, insurer, or agent) only upon a showing that the party seeking 
discovery has substantial need of the material in the preparation of the party’s 
case and that the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means. 

  
   
   
      
         
 
       
 
 
  
     
 
 
  
    
    
       
CBCA 95 10
 
Appellant makes the argument that it has a substantial need for these documents and 
cannot obtain equivalent information elsewhere as to the reasonableness of FS decisions in 
going forward with the sale.  Among the issues in this appeal is whether the FS acted 
reasonably in awarding a contract to appellant and in carrying out its environmental 
responsibilities.  In examining the reasonableness, we look at the actions of the FS at the 
time of both award and pre-award.  In presenting its motion, appellant revives an argument 
it made to Judge Westbrook, early on in these proceedings. It argues that the FS has placed 
the legal advice it received from DOJ at issue, thereby waiving any work product protection. 
My view on the “at issue” waiver remains as it has been.  There is no basis under the “at 
issue” waiver to release the documents in dispute here. 
This appeal is about the actions of the FS.  The documents being sought here are legal 
views and opinions by DOJ in carrying out its role as an attorney to the FS.  There is no 
evidence of source documents from the FS. It would be expected that the documents might 
reflect some FS input, gleaned by the DOJ attorneys preparing the documents in dispute. 
However, to whatever extent that input is reflected, it would be reflected in summaries, 
created by DOJ lawyers, as to what was said and conveyed. We are thus seeing that 
information through DOJ’s eyes, with DOJ attorneys having sorted out what was important 
and what was not.  
The following excerpts from Hickman v. Taylor  are particularly pertinent in 
identifying how I see the scope of discovery in these cases, and what I see as the legitimate 
need to protect documents prepared by attorneys in cases of this nature.  In commenting 
upon the role of a lawyer, the Court stated:  
Proper preparation of a client’s case demands that he assemble information, 
sift what he considers to be the relevant from the irrelevant facts, prepare his 
legal theories and plan his strategy without undue and needless interference. 
That is the historical and the necessary way in which lawyers act within the 
framework of our system of jurisprudence to promote justice and to protect 
their clients’ interests.  This work is reflected, of course, in interviews, 
statements, memoranda, correspondence, briefs, mental impressions, personal 
beliefs, and countless other tangible and intangible ways - aptly though 
roughly termed by the Circuit Court of Appeals in this case [153 F.2d 212, 
223] as the “Work product of the lawyer.”  Were such materials open to 
opposing counsel on mere demand, much of what is now put down in writing 
would remain unwritten. An attorney’s thoughts, heretofore inviolate, would 
not be his own.  Inefficiency, unfairness and sharp practices would inevitably 
develop in the giving of legal advice and in the preparation of cases for trial. 

 
  
    
  
    
 
 
  
          
  
 
 
 
     
  
  
   
     
  
 
  
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The effect on the legal profession would be demoralizing. And the interests 
of the clients and the cause of justice would be poorly served.   
329 U.S. at 511. 
In addressing the reliability and use of attorney-gathered information, the Hickman 
Court continued addressing the release of oral statements made to counsel, stating: 
Under ordinary conditions, forcing an attorney to repeat or write out all that 
witnesses have told him and to deliver the account to his adversary gives rise 
to grave dangers of inaccuracy and untrustworthiness.  No legitimate purpose 
is served by such production. The practice forces the attorney to testify as to 
what he remembers or what he saw fit to write down regarding witnesses’ 
remarks.  Such testimony could not qualify as evidence; and to use it for 
impeachment or corroborative purposes would make the attorney much less 
an officer of the court and much more an ordinary witness.  The standards of 
the profession would thereby suffer. 
329 U.S. at 512-13. 
The above make clear that the release of information created or put together by an 
attorney is information that should be protected. This case is not about the impressions of 
the DOJ attorneys. Rather, it is about the actions of the  FS in awarding the contract and 
carrying out its environmental responsibilities and whether the FS actions were unreasonable 
so as to constitute breach.   
Appellant argues that the best, and possibly only, evidence of whether the FS actions 
were unreasonable was the objective advice the FS received during the Heartwood case, 
focusing here on legal advice from DOJ.  I do not agree.  Certainly, advice and opinions 
from individuals within and outside the FS would likely be useful in determining the 
reasonableness or unreasonableness of the FS actions. However, the actions themselves, not 
someone’s take on them, are the central issue here.  Our legal system provides for certain 
protections to a litigant and his or her attorney.  In setting out that protection the law 
recognizes that certain information which could be helpful to an opposing party is shielded. 
Finally, the use of in camera inspection is a matter of discretion for the trial judge. 
It is not automatic.  It is appropriate in a number of circumstances, but should be utilized for 
good and proper reason and not simply because it is requested.  Generally, the party 
opposing the privilege needs to show a factual basis sufficient to support a reasonable good 
faith belief that in camera inspection may reveal evidence that information in the materials 

 
       
  
   
 
   
       
       
    
 
 
  
   
       
 
 
 
          
  
 
 
 
      
    
 
   
CBCA 95 12
 
is not privileged.  The primary case cited for guidance is United States v. Zolin , 491 U.S. 
554 (1989), a case involving the use of the crime fraud exception to the attorney-client 
privilege.  In Zolin, the Internal Revenue Service (IRS) was attempting to secure documents 
relating to the tax returns of L. Ron Hubbard, founder of the Church of Scientology.  The 
church opposed the production of two tapes, claiming the tapes were protected under 
attorney-client privilege.  IRS countered, contending that the tapes fell under the exception 
for communications in furtherance of future illegal conduct, the crime fraud exception.  The 
crime fraud exception carries with it its own set of parameters; nevertheless, Zolin is 
guidance for a wider range of cases.   
In Zolin, the Court set several parameters, among which was the requirement that the 
party opposing the privilege must present sufficient evidence to support the reasonable belief 
that in camera review may yield evidence establishing the exception’s applicability.  491 
U.S. at 572.  The Court continued that once the threshold showing was made, the decision 
whether to examine the documents in camera needed to be made in light of facts and 
circumstances of the particular case, among which was the likelihood that the evidence 
produced, together with other available evidence before the tribunal, would establish that 
the privilege should not apply. 
A number of courts have followed the sentiments set out in Zolin and particularly have 
demonstrated a reluctance to engage in an in camera inspection when there is no indication 
that the documents are other than privileged, as described by the proponent, and where there 
is no reason to suspect that the proponent is being less than truthful in his or her description. 
In Standard Chartered Bank v. Ayala International Holdings , 111 F.R.D. 76 (S.D.N.Y. 
1986), the court addressed a request that the judge review in camera each document still 
being withheld.  The court pointed out that opposing counsel apparently believed that Ayala’s 
counsel could not be trusted to determine privilege.  The court commented that if it was to 
review each and every document withheld in litigation as privileged, for no other reason than 
counsel’s distrust of his or her adversary, the courthouse could hardly function.  The court 
pointed out that Ayala’s counsel had an ethical duty as well as a duty under Fed. R. Civ. P. 
11 to make a truthful, good-faith determination of what documents were privileged and to 
present a proper listing.  As to those documents for which Standard legitimately questioned 
the privilege designation, the court stated that Standard should point them out specifically 
to the court.  Similarly, in Glaxo, Inc. v. Novopharm Ltd., 148 F.R.D. 535 (E.D.N.C. 1993), 
that court, citing Standard, also declined to review documents, again rejecting as an adequate 
basis opposing party’s counsel asking the court not to accept representations made by his 
opponent.  As in Standard, the court noted that it would depend on Glaxo’s counsel to abide 
by the court’s holdings with respect to privilege and to produce those documents which under 
the court’s order are not protected.  In Guy v. United Healthcare Corp., 154 F.R.D. 172 (S.D. 

 
 
  
 
 
  
 
     
  
  
   
    
CBCA 95 13
 
Ohio 1993), that court also declined to review documents in camera on the basis of the 
implicit determination that the representations made by defense counsel were untrue.  
In Renfield Corp. v. E. Remy Martin & Co., 98 F.R.D. 442, 445 (D. Del. 1982), that 
court provided its view on a request for an in camera inspection. There the court ruled in a 
memorandum opinion in an antitrust action that  in camera inspection would not be made. 
The court pointed out that a party has no right to an in camera inspection of documents where 
his or her opponent files an affidavit setting forth facts sufficient to justify a claim of 
privilege and there is no record basis for questioning the veracity of the affidavit. 
In assessing here whether to inspect the documents in camera, I find it important that 
the privilege at issue is the work product privilege and not attorney-client or deliberative 
process.  DOJ has asserted and I have found that each of the documents falls under that 
privilege.  That privilege, as noted above, has a broader scope and coverage than the other 
named privileges and, as such, there is less room and less likelihood that the documents 
would contain non-privileged material.  
The decision on whether or not to review documents in camera needs to be made on 
a case by case basis.  Here, in assessing whether to invoke an in camera inspection of the 
DOJ documents in dispute, I have examined the declaration of Mr. McKeown and how he 
described the documents.  Based on the description of the documents and the explanation, 
I find no reasonable doubt that the documents meet the test for privilege.  I see no indication 
that the documents contain non-privileged material and find that there is no likelihood that 
the review of the documents would result in their disclosure.  Appellant has provided no basis 
to suggest otherwise. 
Of course, there can be no absolute certainty that the documents have nothing within 
them that would warrant disclosure.  However, the discovery system does not operate on the 
basis of remote possibilities.  Accordingly, because I find there is not sufficient reason to 
have a good faith belief that the documents being sought here may reveal non-privileged 
evidence, and because there is no basis to disbelieve or question the representations of DOJ, 
I deny the request for in camera inspection. 

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CBCA 95 14
 
Decision 
Appellant’s MOTION TO COMPEL IS DENIED. 
HOWARD A. POLLACK 
Board Judge