MOTION TO COMPEL GRANTED IN PART:  June 12, 2026
CBCA 8487
JANNIE M. HORACE,
Appellant,
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT,
Respondent.
Jannie M. Horace, pro se, Monrovia, Liberia.
Robert J. Anderson and Aaron J. Pound, Office of General Counsel, General Services
Administration, Washington, DC, counsel for Respondent.1
NEWSOM, Board Judge.
1 Due to an agency restructuring and reduction in force, counsel for the United
States Agency for International Development (USAID or agency) withdrew from the case,
effective March 6, 2026.  Attorneys from the General Services Administration filed notices
of appearance “on behalf of USAID” on March 16, 2026.

CBCA 8487 2
ORDER2
This order addresses the remaining issues raised in appellant’s October 29, 2025,
Motion to Compel.  By order dated November 19, 2025, the Board resolved many issues but
needed additional information to resolve appellant’s request (b), in which she seeks
production of contracting officer’s final decisions (COFD) pertaining to claims brought by
persons other than herself, and appellant’s requests (c), (d), and (e), in which she seeks
production of certain internal government communications and legal opinions, which
respondent contends are protected from disclosure due to various privileges.  The Board,
having received and assessed the parties’ submissions, resolves each request below.
Discussion
I. COFDs on Claims Submitted by Persons Other than Appellant (Request (b))
In appellant’s request (b), she seeks to compel respondent to produce COFDs
pertaining to meal break claims submitted by persons—other than herself—who signed
settlement agreements with respondent.  We find that COFDs issued to persons other than
appellant are not within the scope of discovery.  Under the Federal Rules of Civil Procedure
(FRCP), parties may obtain discovery of any nonprivileged matter that is “relevant to any
party’s claim or defense and proportional to the needs of the case.”  Fed. R. Civ. P. 26(b)(1). 
Unless otherwise ordered, the scope of discovery at the Board is the same as under
FRCP 26(b)(1).  See Board Rule 13(b) (48 CFR 6101.13(b) (published in eCFR)).
Appellant argues that these COFDs would reveal how respondent interprets and applies
the legal standards for paid meal breaks in different fact patterns and, in particular, whether
respondent applied a consistent approach.  These arguments are not persuasive.  How
respondent applied legal standards in fact patterns different from appellant’s claim has no
bearing on whether respondent correctly applied those standards to appellant.  Respondent is
not required to produce documents responsive to request (b).
2 This order is being published to assist in providing greater transparency to the
public about the manner in which the Board has addressed issues in cases before it. 
Although single-judge orders like this one are binding in the appeals in which they are
issued, they are, consistent with Board Rule 1(d) (48 CFR 6101.1(d) (published in eCFR)),
not precedential in other appeals before the Board.

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II. Internal Government Communications and Legal Opinions (Requests (c), (d), and (e))
In requests (c), (d), and (e), appellant seeks production of internal government
communications and legal opinions about the issues in her claim.  We previously ordered
respondent to produce nonprivileged responsive documents.  At issue is whether the
remaining documents are protected from discovery by various privileges.  Respondent
submitted a privilege log and provided the documents to the Board confidentially for in
camera review, together with explanatory information.  Having reviewed these submissions,
we render the following determinations.
A. Legal Standards for Various Privileges
Respondent bears the burden to prove its assertions of privilege.  Siler v.
Environmental Protection Agency, 908 F.3d 1291, 1297 (Fed. Cir. 2018).  For respondent to
carry its burden, it must demonstrate that each of the elements of the claimed privilege is
satisfied for each document.  AAB Joint Venture v. United  States, 75 Fed. Cl. 432, 445-46
(2007).  Respondent asserts three different privileges or protections, each applying to a subset
of the documents:  (1) the attorney-client privilege; (2) the work product doctrine; and (3) the
deliberative process privilege.
The attorney-client privilege protects confidential communications between a client
and its attorney for the purpose of obtaining legal advice or legal services.  Siler, 908 F.3d at
1297.  Respondent must show that the allegedly-protected communication was made in
confidence between the agency and its attorney for the purpose of securing either a legal
opinion, legal services, or assistance in a legal proceeding.  Id.
The work product doctrine protects from discovery documents that were prepared in
anticipation of litigation.  Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).  The purpose of
the work product doctrine is to “shelter[ ] the mental processes of the attorney, providing a
privileged area within which he can analyze and prepare his client’s case.”  United States v.
Nobles, 422 U.S. 225, 238 (1975).  Work product protections are set forth in FRCP 26(b)(3),
which reads, “Ordinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative.” 
Such protection is not absolute and may be overcome by a showing of substantial need.  Id.;
see In re EchoStar Communications Corp., 448 F.3d 1294, 1301-02 (Fed. Cir. 2006).
The deliberative process privilege protects government pre-decisional and deliberative
information.  Active Construction, Inc. v. Department of Transportation, CBCA 6597, 22-1
BCA ¶ 38,072, at 184,861-62.  The purpose of the deliberative process privilege is to enhance
“‘the quality of agency decisions’ by protecting open and frank discussion among those who

CBCA 8487 4
make them within the Government.”  Department of the Interior v. Klamath Water Users
Protective Association, 532 U.S. 1, 8-9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 151 (1975)).  The privilege protects information from disclosure that is
“predecisional” (generated before the agency adopts a policy or reaches a decision) and
“deliberative” (prepared to assist an agency decision-maker in arriving at a decision through
the give-and-take of the collaborative process).  Active Construction, 22-1 BCA at 184,861. 
Government deliberations whether to pursue a particular course of action in litigation are
among the deliberations that are protected by this privilege.  See Ridenour v. Kaiser-Hill Co.,
397 F.3d 925, 939 (10th Cir. 2005).  To establish that a document is protected by the
deliberative process privilege, respondent must submit a declaration from the head of the
agency (or a person to whom the agency head has delegated authority) invoking the privilege
after a personal review of the documents and explaining the harm that could ensue from
disclosure.  Marriott International Resorts, L.P. v. United States, 437 F.3d 1302, 1306-08
(Fed. Cir. 2006).
B. Analysis of Privilege Assertions
The analysis of respondent’s privilege assertions follows.  The documents are
identified by the number assigned on the privilege log.
1. Documents 1 Through 6
Documents 1 through 6 are written communications between agency personnel and
lawyers retained by the agency.  Respondent asserts that they are protected by the
attorney-client privilege and the work product doctrine, and we agree.  Each of these
documents contains requests for legal advice and/or legal advice provided by an attorney to
their client.  The documents indicate that an attorney prepared these documents in anticipation
of litigation.  Respondent additionally asserts that Document 6 is protected from discovery
under the deliberative process privilege.  In light of the decision that the document is
protected from disclosure by the attorney-client privilege and the work product doctrine, it is
unnecessary to reach this question.  Documents 1 through 6 are protected from disclosure.
2. Documents 7 Through 10
Document 7 is a cover email from an agency non-lawyer human relations employee
forwarding an attorney’s legal opinion to non-lawyer agency personnel.  The attachment (the
legal opinion) is not included, so we address only the cover email.  Respondent asserts that
the email is protected by the attorney-client privilege and work product doctrine.  We
conclude that the email is not protected by the attorney-client privilege because it was not a
communication between an attorney and their client.  The email is, however, protected by the

CBCA 8487 5
work product doctrine, although it is a close call.  The email does not expressly state that it
was prepared in anticipation of litigation, but the act of forwarding a legal opinion suggests
that the sender and recipients were anticipating litigation.  Document 7 is protected from
disclosure.
Document 8 is an email chain.  First is an email from a non-lawyer agency employee
stating that they seek “L’s advice,” which we understand to be a request for legal advice. 
Next is a follow-up email repeating the request.  Respondent asserts that both emails are
protected by the attorney-client and deliberative process privileges.  We conclude that the
emails are protected by the attorney-client privilege because they reflect a client’s request to
their lawyer for legal advice.  In light of this conclusion, it is unnecessary to reach the
deliberative process privilege assertion.  Document 8 is protected from disclosure.
Document 9 is a draft of an employee handbook that contains edits and comments. 
Respondent asserts that it is protected from disclosure by the deliberative process privilege,
and we agree.  This handbook articulates agency policies, and the comments and edits reflect
pre-decisional comments on proposed modifications to that policy.  Respondent submitted a
memorandum from a senior official, asserting that the comments reflect internal deliberations
on agency policy and that divulging these documents would “chill” internal deliberations.
Document 9 is protected from disclosure.
Document 10 is an email chain containing emails dated from May 11, 2024, through
September 26, 2024.  Respondent asserts that the entire chain is protected by the
attorney-client and deliberative process privileges.  We conclude that most of the emails are
privileged, but one is not.  We address them in chronological order.
The email dated May 11, 2024, is from a person outside of the agency.  None of the
privileges or protections apply.  It does not contain a request for legal advice or legal advice
or reflect deliberations on an agency policy.  It must be produced.
The emails dated from May 13, 2024, to September 9, 2024, contain requests for legal
advice and responses from an attorney.  They are protected by the attorney-client privilege. 
In light of this conclusion, it is unnecessary to determine whether they are also protected by
the deliberative process privilege.  This determination applies to two emails dated May 13;
two emails dated May 14; one email dated June 14; one email dated June 21; three emails
dated June 25; one email dated June 27; one email dated July 28; two emails dated August 19;
and single emails dated August 23, August 27, September 5, September 8, and September 9.
This determination does not apply to the email dated September 21, 2024.  That email
is not subject to the attorney-client privilege because it is neither a request for legal advice nor

CBCA 8487 6
a response to a request for legal advice.  The September 21, 2024, email is, however, subject
to the deliberative process privilege because it includes comments on proposed changes to an
agency policy.  As such, it reflects pre-decisional, deliberative comments on proposed agency
decisions.  Respondent submitted a memorandum from a senior official, asserting that the
comments reflect internal deliberations on agency policy and that divulging this document
would “chill” internal deliberations.
Document 10 also includes four emails dated September 26, 2024.  The first two emails
(bearing the times 2:48 p.m. and 3:51 p.m.) are not subject to the attorney-client privilege
because they do not contain either a request for legal advice or legal advice.  These two emails
are, however, subject to the deliberative process privilege.  They contain comments on
proposed changes in agency policy.  Respondent submitted a memorandum from a senior
official, asserting that the comments reflect internal deliberations on agency policy and that
divulging these documents would “chill” internal deliberations.
The last two emails dated September 26, 2024 (bearing the times 4:41 p.m. and
5:04 p.m.) are subject to the attorney-client privilege.  They contain requests for legal advice
and legal advice from an attorney.
In summary, the email dated May 11, 2024, is not protected from discovery and
must be produced.  The remaining emails comprising Document 10 are protected from
disclosure.
3. Documents 11, 11a, 11b
Document 11 is an email chain containing two emails dated May 11, 2024, and
December 26, 2024.  Respondent asserts that all of the emails in the chain are protected by
the attorney-client and deliberative process privileges.  We address them in chronological
order.
The email dated May 11, 2024, is from a person outside of the agency.  None of the
privileges or protections apply.  It does not contain a request for legal advice or legal advice
or reflect deliberations on an agency policy.  It must be produced.
The email dated December 26, 2024, contains a request for legal advice directed to an
agency lawyer.  It is protected by the attorney-client privilege.
Document 11a is a message from the Liberian Ministry of Foreign Affairs dated
December 12, 2024.  Document 11b is a memorandum dated December 20, 2024.  Neither
document contains content subject to the attorney-client privilege or appears to reflect internal

CBCA 8487 7
agency deliberations.  Thus, they are not privileged.  However, they have no discernible
relevance to the appellant or this dispute and are not responsive to appellant’s requests for
production in its motion to compel.3  In summary, Documents 11a and 11b do not need to
be produced because they are irrelevant and nonresponsive.  Only the email dated
May 11, 2024, must be produced.
4. Documents 12, 12a, 12b, and 12c
Documents 12, 12a, 12b, and 12c are a set of documents pertaining to the agency’s
potential settlement with some of the claimants, including a memorandum requesting approval
of the proposed settlements, a draft settlement agreement, and calculations of settlement
amounts.  The respondent asserts that the documents are protected from disclosure by the
deliberative process privilege.  We agree.  The documents reflect pre-decisional deliberations
regarding an agency decision on a potential settlement.4  Documents 12, 12a, 12b, and 12c
are protected from disclosure.
Note that there is no Document 13.
5. Document 14
Document 14 is an email chain containing emails dated from May 11, 2024, to
August 30, 2024.  Respondent asserts that Document 14 is protected from disclosure by the
attorney-client privilege, the work product doctrine, and the deliberative process privilege. 
We conclude that most of the emails are privileged, but one is not.  We address them in
chronological order.
3 In her motion to compel, appellant requested, inter alia, copies of appellant’s
contracts; COFDs pertaining to claims submitted by other contractors; certain written
communications between USAID, the United States Embassy in Monrovia management, and
the Bureau of Global Talent Management Office of Overseas Employment (GTM/OE)
concerning the issues in appellant’s claim; “back and forth” exchanges between the United
States Embassy in Monrovia and other agency officials concerning the issues in appellant’s
claim; and certain legal opinions.  Documents 11a and 11b do not fall into any of these
categories.
4 Although not relevant to the issue of whether the documents must be produced
under FRCP 26(b)(1) or Board Rule 13(b), we note that these documents would likely be
inadmissible under Federal Rule of Evidence 408.

CBCA 8487 8
The email dated May 11, 2024, is from a person outside of the agency.  None of the
privileges or protections apply.  It does not contain a request for legal advice or legal advice
or reflect deliberations on an agency policy.  It must be produced.
The emails dated from May 13, 2024, to August 23, 2024, repeat emails in Document
10, which we have determined are protected by the attorney-client privilege.  The email dated
August 30, 2024, is not a copy of any email in Document 10.  It is not protected by the
attorney-client privilege because it does not contain a request for legal advice or legal advice. 
It is, however, protected from disclosure under the deliberative process privilege because it
contains comments on a proposed change to agency policy.  Respondent submitted a
memorandum from a senior official, asserting that the comments reflect internal deliberations
on agency policy and that divulging this document would “chill” internal deliberations.  In
summary, the email dated May 11, 2024, is not protected from discovery and must be
produced.  The remaining emails comprising Document 14 are protected from
disclosure.
6. Document 15
Document 15 is a chain of three emails dated June 11, 2024, and June 12, 2024,
between non-lawyers.  The respondent asserts that these emails are protected by the
deliberative process privilege.  We agree.  This document reflects pre-decisional comments
on proposed modifications to an agency policy.  Respondent submitted a memorandum from
a senior official, asserting that the comments reflect internal deliberations on agency policy
and that divulging these documents would “chill” internal deliberations.  Document 15 is
protected from disclosure.
C. Absence of Waiver
Finally, in the order dated November 19, 2025, we inquired whether respondent may
have waived any privilege by including, in the appeal file, certain legal memoranda.  Upon
further review, we determined that those legal memoranda were not authored by respondent
but rather were authored by representatives of the appellant and other contractors. 
Accordingly, there is no basis to conclude that respondent waived any privileges by including
those memoranda in the appeal file.

CBCA 8487 9
Decision
As set forth above, appellant’s motion to compel is GRANTED IN PART. 
Respondent shall produce the documents identified in this order within fourteen calendar
days.
     Elizabeth W. Newsom     
ELIZABETH W. NEWSOM
Board Judge