MOTION TO COMPEL DENIED:  December 8, 2022
CBCA 6558
RITA R. WADEL REVOCABLE LIVING TRUST AND 229 JEBAVY ROAD, LLC
dba LUDINGTON INDUSTRIES BUILDING,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
John V. Byl, Gaëtan Gerville-Réache, and Adam D. Bruski of Warner Norcross +
Judd LLP, Grand Rapids, MI, counsel for Appellant.
James Scott, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
BEARDSLEY, Board Judge (Chair).
ORDER
The General Services Administration (GSA) filed a motion to compel the production
of certain documents withheld as privileged by Rita R. Wadel Revocable Living Trust and
229 Jebavy Road, LLC dba Ludington Industries Building (the Trust).  We find that neither
the fact that the Trust’s counsel sent privileged communications to a trustee’s work email
address nor the fact that a trustee sent privileged communications to a Trust beneficiary
defeats the attorney-client privilege or the work product doctrine.  The motion to compel is,
therefore, denied.  


CBCA 6558 2
Background
I. Communications from Trust Counsel to Trustee’s work email address  
Mary Pat Dunleavy is a trustee of the Trust and a Senior Vice President and Agency
Division Manager at Fidelity National Financial (FNF).  For several years, the Trust’s
counsel sent emails containing information relating to legal representation of the Trust to
Ms. Dunleavy’s FNF email address.  The Trust maintains that these emails are protected both
by the attorney-client privilege and the work product doctrine.  
Ms. Dunleavy asserts that she had a reasonable belief that the emails were
confidential:  
There has never been a breach of [Ms. Dunleavy’s] email privacy by any entity
either within or outside of the company.  In fact, on occasion, in her senior role
at her employer, Ms. Dunleavy has been involved in incidents where the
company did need to get access to an employee’s email.  Such incidents have
taken place under extraordinary circumstances and required sign off by the
company’s counsel.  Further, . . . company emails not specifically marked for
retention are automatically deleted by the system after a short time
period—approximately 180 days.
Appellant’s Response to the Motion to Compel at 3.
FNF’s Code of Business Conduct & Ethics (the Code) states: 
Occasional personal use of email is acceptable.  However, you should have no
expectation of privacy if you send email using Company computers.  You also
must abide by all Company policies when using Company computers.  You
must never send harassing or inappropriate emails, chain letters, personal
advertisements or solicitations.
Respondent’s Motion to Compel, Exhibit 3 at 25.
II. Emails from a Trustee to a Beneficiary
Another trustee, Patricia Gowell, sent emails to one of the Trust’s beneficiaries
containing communications from the Trust’s counsel.  The Trust asserts that the redacted
portions of these emails contain information protected by the attorney-client privilege and/or
the work product doctrine.  According to the Trust, the beneficiaries take an active and
involved role in decisions regarding the Trust.

CBCA 6558 3
Discussion
I. Communications from Trust Counsel to Trustee’s work email address
GSA argues that the attorney-client privilege does not apply to emails sent to
Ms. Dunleavy’s work email address because she had no reasonable expectation of privacy. 
GSA asserts that the FNF Code put Ms. Dunleavy on notice that any emails sent or
received from her work email address would be accessible by a third-party, thereby rebutting
any reasonable expectation of confidentiality.  “Assuming a communication is otherwise
privileged, the use of the company’s e-mail system does not, without more, destroy the
[attorney-client] privilege.”  In re Asia Global Crossing, Ltd., 322 B.R. 247, 251 (Bankr.
S.D.N.Y. 2005).  
The question of privilege comes down to “whether the [employee’s] intent to
communicate in confidence was objectively reasonable.”  Asia Global, 322 B.R. at 257-59
(identifying four factors to determine reasonableness: “(1) does the corporation maintain a
policy banning personal or other objectionable use, (2) does the company monitor the use of
the employee’s computer or e-mail, (3) do third parties have a right of access to the computer
or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of
the use and monitoring policies?”); see also Convertino v. United States Department of
Justice, 674 F. Supp. 2d 97, 110 (D.D.C. 2009).  The majority of circuits consider “whether
the client reasonably understood the [conversation] to be confidential” in determining
whether communications are privileged.  Eastman v. Thompson, 594 F. Supp. 3d 1156, 1176
(S.D. Cal. 2022) (citing Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984) (quoting
McCormick on Evidence § 91, at 189 (1972), and numerous other cases)).  “Determining the
client’s intent hinges on the circumstances of the communication, such as whether disclosure
to third parties was intended or considered.”  Id. at 1177 (citing In re LTV Securities
Litigation, 89 F.R.D. 595, 603-04 (N.D. Tex. 1981)).  “In light of the variety of work
environments, whether the employee has a reasonable expectation of privacy must be
decided on a case-by-case basis.”  Asia Global, 322 B.R. at 257 (citing O’Connor v. Ortega,
480 U.S. 709, 718 (1987)); see Convertino, 674 F. Supp. 2d at 110.
We find that it was reasonable for Ms. Dunleavy to expect to communicate in
confidence with the Trust’s counsel through her work email.  The FNF Code does not ban
personal use of the work computer system but allows “occasional personal use.”  Moreover,
while the Code explicitly states that an employee should not expect privacy, it refers only to
emails “sent” from the work computers, not those received by the work computers.  The
emails at issue here were sent to, not from, Ms. Dunleavy’s work email address.  

CBCA 6558 4
There is also no indication that the company monitored the employee’s computer or
emails, or even reserved the right to do so, and the Code is silent as to third-party access. 
Although Ms. Dunleavy indicated that in rare circumstances the company had accessed
employee emails, such access seemed extraordinary, not routine, and the basis for accessing
those emails is unknown.  Considering the Asia Global Crossing factors and the
circumstances here, we conclude that Ms. Dunleavy reasonably understood the emails sent
from the Trust’s counsel to be confidential.  Therefore, the attorney-client privilege has not
been destroyed as a result of the Trust’s counsel sending emails to Ms. Dunleavy’s work
email account.
II. Emails from Trustee to a Beneficiary
GSA argues that the trustee waived the attorney-client privilege by disseminating
otherwise privileged information to a beneficiary—a nonparticipant in trust management
without a need to know the privileged information.  The Trust argues that the beneficiaries
of the Trust had a need to know this information and that they may assert the attorney-client
privilege over the communications because the beneficiaries are the clients and privilege
holders, not the trustee. 
The common law fiduciary exception to the attorney-client privilege “prevents a
trustee from withholding from trust beneficiaries attorney-client communications relating to
the administration of the trust.”  Western Shoshone Identifiable Group v. United States, 158
Fed. Cl. 633, 685 n.32 (2022); see United States v. Jicarilla Apache Nation, 564 U.S. 162,
170-73, 190 (2011).  This exception is based on the idea that the trustees obtain legal advice
on behalf of the beneficiaries because the trustee has “a fiduciary obligation to act in the
beneficiaries’ interest when administering the trust.” Jicarilla Apache Nation, 564 U.S. at
172 (citing Riggs National Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 712 (Del.
Ch. 1976)); see In re Vogel Living Trust, No. 288837, 2010 WL 2136643, at *5 (Mich. Ct.
App. May 27, 2010).  
For that reason, the beneficiaries are the true “clients” of the Trust’s attorney and, as
such, are the proper holders of the attorney-client privilege.  Riggs, 355 A.2d at 713-14 (“The
fiduciary obligations owed by the attorney at the time he prepared the memorandum were to
the beneficiaries as well as to the trustees.”).  “[T]he fiduciary exception is not an ‘exception’
to the attorney-client privilege at all.  Rather, it merely reflects the fact that, at least as to
advice regarding plan administration, a trustee is not ‘the real client’ and thus never enjoyed
the privilege in the first place.”  Advanced Physicians, S.C. v. Connecticut General Life
Insurance Co., 431 F. Supp. 3d 857, 862 (N.D. Tex. 2020) (internal citations omitted).  
The fiduciary exception supports a finding that the beneficiaries, not the trustee, are
the “clients” here and, therefore, the privilege holders.  “In cases applying the fiduciary

CBCA 6558 5
exception, courts identify the ‘real client’ based on whether the advice was bought by the
trust corpus, whether the trustee had reason to seek advice in a personal rather than a
fiduciary capacity, and whether the advice could have been intended for any purpose other
than to benefit the trust.”  Jicarilla Apache Nation, 564 U.S. at 179 (citing Riggs, 355 A.2d
at 711-12).  Assuming that, here, the Trust paid for the attorney, the trustee sought advice in
her fiduciary capacity, and the advice was intended to benefit the Trust, the real client was
the beneficiary, not the trustee.  As such, the attorney-client privilege was not waived or
defeated.1  
III. Work Product Doctrine
The Trust asserts that the attorney work product doctrine would protect the emails
from disclosure to GSA.  “[A]bsent waiver, a party may not obtain the ‘opinion’ work
product of its adversary.”  In re Columbia/HCA Healthcare Corp. Billing Practices
Litigation, 293 F.3d 289, 294 (6th Cir. 2002).  The work product doctrine protects the work
product created by attorneys in anticipation of litigation but does not protect the facts
contained within or underlying attorney work product.  TAS Group, Inc. v. Department of
Justice, CBCA 52, 07-2 BCA ¶ 33,641, at 166,604 (citing Hickman v. Taylor, 329 U.S. 495,
511-12 (1947), and In re Unilin Decor N.V., 153 F. App’x 726, 728 (Fed. Cir. 2005)); Fed.
R. Civ. P. 26(b)(3) (the scope of the privilege is limited to “documents and tangible
things . . . prepared in anticipation of litigation or for trial by or for another party or by or for
that party’s representative (including the other party’s attorney)”).  The Trust need not
produce attorney work product, even if the emails were sent to Ms. Dunleavy at her work
email address or the emails were sent to the Trust’s beneficiaries.  
1 We also find this situation analogous to that of a corporation sharing privileged
attorney communications with its employees.  The attorney-client privilege extends to a
corporation’s employee if the employee had a need to know the privileged information or
was securing legal advice.  See Upjohn Co. v. U.S., 449 U.S. 383 (1981); Kintera, Inc.
v. Convio, Inc., 219 F.R.D. 503, 514 (S.D. Cal. 2003); Williams v. Spring/United
Management Co., 238 F.R.D. 633, 642 (D. Kan. 2006).  We find the privilege preserved here
because the beneficiary, as a result of the fiduciary relationship between the beneficiary and
the trustee, had a need to know the information. 

CBCA 6558 6
Decision
The motion to compel is DENIED. 
    Erica S. Beardsley          
ERICA S. BEARDSLEY
Board Judge