July 25, 2008 
CBCA 395, 455 
LFH, LLC, 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent. 
Richard J. Conway, Scott Arnold, and Michael J. Slattery of Dickstein Shapiro LLP, 
Washington, DC, counsel for Appellant. 
Robert M. Notigan and Leigh Erin S. Izzo, Office of General Counsel, General 
Services Administration, Washington, DC, counsel for Respondent. 
DANIELS , Board Judge (Chairman). 
ORDER 
As the parties slog their way through discovery, they continue to disagree as to various 
matters, principally those involving claims of privilege by the respondent, the General 
Services Administration (GSA).  The disagreements affect nearly two hundred documents. 
In the interest of economy, rather than reviewing each and every one of those documents, the 
Board in this order provides guidelines which we expect the parties to apply. 
The principal questions raised by the parties are as follows: 

    
    
 
 
      
   
 
 
      
   
 
 
 
  
 
  
   
  
2 CBCA 395, 455 
1. Are documents which GSA has shared with personnel of the Social Security 
Administration (SSA) subject to the attorney-client privilege or the attorney work 
product privilege? 
2. Has GSA waived claims of privilege as to certain documents by circulating 
those documents to certain GSA personnel? 
3. Has GSA waived claims of privilege as to certain documents by altering and 
supplementing those claims as to those documents in the course of addressing 
discovery disputes? 
4. Should the Board (a) require the appellant, LFH, LLC (LFH), to affirm that it 
has produced the single relevant, non-privileged document from a particular electronic 
mail account, or (b) require LFH to produce all relevant, non-privileged documents 
from that account? 
We address each of these questions in turn. 
1. The attorney-client privilege is a common law concept that protects a 
confidential communication between a client and an attorney or an attorney’s agent, if the 
purpose of the communication is to obtain legal services or advice.  LFH, LLC v. General 
Services Administration, CBCA 395, et al. (Nov. 28, 2007), slip op. at 2 ( LFH ) (citing 
Upjohn Co. v. United States , 449 U.S. 383 (1981)).  The purpose of this privilege “is to 
encourage full and frank communication between attorneys and their clients and thereby 
promote broader public interests in the observance of law and administration of justice.” 
Upjohn, 449 U.S. at 389.  The attorney work product privilege is enunciated in Federal Rule 
of Civil Procedure 26(b)(3), which provides that documents and tangible things prepared in 
anticipation of litigation or for trial by or for a party or its representative (including its 
lawyer) are ordinarily not discoverable.  See also Hickman v. Taylor , 329 U.S. 495 (1947). 
“The purpose of this privilege is to ‘encourage[] attorneys to write down their thoughts and 
opinions with the knowledge that their opponents will not rob them of the fruits of their 
labor.’”  TAS Group, Inc. v. Department of Justice , CBCA 52, 07-2 BCA ¶ 33,641, at 
166,604 (quoting In re EchoStar Communications Corp. , 448 F.3d 1294, 1301 (Fed. Cir.), 
cert. denied sub nom. TiVo Inc. v. EchoStar Communications Corp. , 127 S. Ct. 846 (2006)). 
Both privileges can be properly asserted only if the attorney involved is the attorney 
for the client (or party) in question.  This principle is implicit in the attorney-client privilege 
and is clearly stated in the Rule which establishes the attorney work product privilege.  See, 
e.g., In re Subpoena Served on the California Public Utilities Commission, 892 F.2d 778, 781 
(9th Cir. 1989); Ramsey v. NYP Holdings, Inc. , No. 00 Civ. 3478, 2002 WL 1402055, at *6 

    
    
 
  
   
    
   
   
 
 
      
  
 
   
     
  
  
   
  
  
   
  
3 CBCA 395, 455 
(S.D.N.Y. June 27, 2002) (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L. 
Marcus, Federal Practice & Procedure: Civil  § 2024, at 354-56 (2d ed. 1994)).  The question 
to be resolved is whether counsel for GSA, which leased from LFH the building which is at 
issue in these cases, is the attorney for SSA, which physically occupied the building under 
an agreement with GSA. 
LFH asserts, based on an electronic mail message it obtained through discovery, that 
we can quickly conclude that no attorney-client or attorney work product privilege is 
applicable in these cases.  The message, sent on April 25, 2002, from a senior GSA regional 
official to GSA, SSA, and contractor personnel, reads, “Everyone -- all this email is 
discoverable -- and don’t think Mr. Haney’s not smart enough to know that -- or at least his 
lawyers.”  Appellant’s Reply Brief, Exhibit A at G0175615.  According to LFH, “That e-mail 
constitutes the direction of a client to its attorney that no inter-agency privilege exists, and 
also constitutes a binding admission by GSA that such communications did not constitute 
work product.”  Appellant’s Reply Brief at 4.  We see the message differently: it is merely 
a layman’s understanding of applicable law -- and even if it were otherwise, because a 
contractor was involved in the exchange of correspondence, the conclusion expressed could 
be no more than a restatement of the law explained in our November 28, 2007, order: 
disclosure of a document by a government agency to a contractor waives the attorney-client 
privilege.  See LFH , slip op. at 5 (quoting AT&T Communications Inc. v. General Services 
Administration, GSBCA 14732, 99-2 BCA ¶ 30,580, at 157,014-15, aff’d sub nom. AT&T 
Communications, Inc. v. Perry , 296 F.3d 1307 (Fed. Cir. 2002)).  We must delve deeper into 
this matter in order to make a ruling. 
GSA maintains, “Simply put, SSA is GSA’s client in this matter.”  Appellant’s Motion 
to Compel Production of Documents, Exhibit 3 at 3. In support of the proposition that such 
a relationship is possible, GSA cites two cases in which courts found that attorneys employed 
by one government agency were representing another agency -- Cities Service Helex, Inc. v. 
United States , 216 Cl. Ct. 470 (1978), and Hollar v. Internal Revenue Service , No. 95-1882, 
1997 WL 732542 (D.D.C. Aug. 7, 1997).  As LFH points out, these decisions are inapposite 
because the attorneys there were employed by the Department of Justice (DOJ), and except 
as otherwise authorized by law, DOJ lawyers represent the entire United States Government, 
including all agencies thereof, in litigation before United States courts. 28 U.S.C. § 516 
(2000); see also  5 U.S.C. § 3106 (agencies may not hire attorneys for the conduct of such 
litigation; they must refer matters to the DOJ).  Boards of contract appeals are not courts, 
however.  Sterling Federal Systems, Inc. v. Goldin , 16 F.3d 1177, 1182, 1184, 1185-86 (Fed. 
Cir. 1994); SMS Data Products Group, Inc. v. Austin , 940 F.2d 1514, 1517 (Fed. Cir. 1991); 

    
 
    
  
 
  
 
  
 
 
         
    
    
 
4 CBCA 395, 455 
ViON Corp. v. United States , 906 F.2d 1564, 1566-67 (Fed. Cir. 1990). 1   Proceedings before 
these boards are not “litigation” for the purpose of 28 U.S.C. § 516, and DOJ lawyers do not 
represent agencies (other than their own agency) before such boards.  PLB Grain Storage 
Corp. v. Glickman, No. 95-1169, 1997 WL 242179, at *3 (Fed. Cir. May 12, 1997) 
(unpublished, but persuasive as confirming longstanding practice).  Therefore, GSA attorneys 
do not have the same relationship to other agencies that DOJ attorneys have. 
As to the question whether an attorney employed by an agency other than DOJ may 
be considered to represent another agency, we find decisions cited by LFH to be pertinent 
and persuasive.  United States v. American Telephone & Telegraph Co. , 86 F.R.D. 603 
(D.D.C. 1980), and Gray v. Rhode Island Department of Children, Youth & Families , 937 
F. Supp. 153 (D.R.I. 1996), both conclude that the department or agency that employs an 
attorney is the attorney’s client.  937 F. Supp. at 159; 86 F.R.D. at 616.  The Gray  decision 
contains this useful analysis: 
The District of Columbia Bar Special Committee on Government Lawyers and 
The Model Rules of Professional Conduct, the New York State Bar 
Association, and the State Bar of Montana Ethics Committee have all 
examined the issue of client identification with regard to governmental 
lawyers.  All agree that the appropriate rule should be that a lawyer 
representing a governmental agency only represents that agency and not the 
government as a whole. . . . Treating the whole government as the client 
creates great difficulty in delineating the lines of ethical standards. . . .  As the 
D.C.  Bar Report noted “[t]he identification of one’s client as the entire 
government would raise serious questions regarding client control and 
confidentiality.”  Thus, restricting the definition of the client to the lawyer’s 
agency, proves to be the most appropriate answer for purposes of applying the 
Model Rules. 
937 F. Supp. at 158-59 (citation omitted). 
One of our predecessor boards, the General Services Administration Board of 
Contract Appeals, handled a case consistent with the rule established in American Telephone 
and Gray .  In Heritage Reporting Corp. v. General Services Administration, GSBCA 10396, 
1 The boards are, however, “courtlike” -- they “function as quasi judicial bodies” 
and have “quasi-judicial nature and powers.” S. Rep. No. 95-1118 at 24, 25, 26, reprinted 
in 1978 U.S.C.C.A.N. at 5258, 5259, 5260; see also Boeing Petroleum Services, Inc. v. 
Watkins , 935 F.2d 1260 (Fed. Cir. 1991). 

       
 
       
 
    
          
 
             
 
 
 
 
 
   
   
 
   
     
 
    
 
  
     
 
 
    
5 CBCA 395, 455 
the board held that end-user agencies for which a contractor provided a service under a GSA 
contract were not parties to a case between the contractor and GSA.  The board “recognize[d] 
that counsel for GSA does not represent the Department of Justice.”  92-1 BCA ¶ 24,677, at 
123,122 (1991).  Consequently, statements by GSA counsel could not bind those agencies. 
95-1 BCA ¶ 27,555, at 137,322 (1992). The other agencies were permitted to appear in the 
case, as represented by their own lawyers, for specific, limited purposes.  94-2 BCA 
¶ 26,686; 92-1 BCA ¶ 24,677; 91-2 BCA ¶ 23,845.  We expressly hold here that this practice 
was correct, and that an attorney who is employed by a government agency does not 
represent another agency when he or she appears before the Board. 
American Telephone  and Gray  do recognize that there is an exception to this rule: 
when an attorney employed by one agency provides legal advice or assistance to another 
agency on a basis that is confidential among the clients and relates to a matter in which the 
two agencies have a substantial identity of legal interest, communications may be privileged. 
937 F. Supp. at 159; 86 F.R.D. at 617.  This exception is an expression of the common 
interest doctrine, pursuant to which “parties with shared interest in actual or potential 
litigation against a common adversary may share privileged information without waiving 
their right to assert the privilege.”  Katz v. AT&T Corp. , 191 F.R.D. 433, 437 (E.D. Pa. 2000) 
(quotation and citation omitted).  “The nature of the interest, however, must be identical, not 
similar, and be legal, not solely commercial.”  Id.  Furthermore, “[a] party which relies on 
the . . . common interest doctrine must establish that the parties had agreed to pursue a joint 
defense strategy.  A written agreement is the most effective method of establishing the 
existence of a common interest agreement, although an oral agreement whose existence, 
terms and scope are proved by the party asserting it, may provide a basis for the requisite 
showing.”  Intex Recreation Corp. v. Team Worldwide Corp. , 471 F. Supp. 2d 11, 16 (D.D.C. 
2007) (citing Minebea Co. v. Papst , 228 F.R.D. 13, 16 (D.D.C. 2005) (quotation omitted). 
GSA has not met its burden of demonstrating that the common interest doctrine should 
be invoked here.  As LFH maintains, numerous documents which have been obtained 
through discovery show that although GSA and SSA agree that LFH should bear the costs 
which are at issue in our cases, the two agencies have disagreed strenuously as to which of 
them is at fault for various problems and should bear the costs if LFH prevails against GSA. 
Appellant’s Motion to Compel at 12-13, Exhibits 5-9. Additionally, GSA has provided no 
evidence that the two agencies have agreed to pursue a joint defense strategy.  We have 
neither a written agreement nor an affidavit or declaration as to an oral agreement to this 
effect. 
We consequently conclude that any communications which GSA may have shared 
with any SSA personnel are not subject to either the attorney-client privilege or the attorney 
work product privilege. 

 
  
 
 
   
 
    
  
  
 
     
      
 
    
  
   
    
      
  
  
 
6 CBCA 395, 455 
2. Even within GSA, the circulation of some or all of the documents in question 
may have waived any claim of privilege.  “[T]he test of whether the circulation of an 
otherwise privileged communication to others within an agency waives the [attorney-client] 
privilege ‘is whether the agency is able to demonstrate that the documents, and therefore the 
confidential information contained therein, were circulated no further than among those 
members who are authorized to speak or act for the organization in relation to the subject 
matter of the communication.”  Alexander v. Federal Bureau of Investigation, 186 F.R.D. 
154, 162 (D.D.C. 1999) (quoting Coastal States Gas Corp. v. Department of Energy , 617 
F.2d 854, 863 (D.C. Cir. 1980) (emphasis added in Alexander )). Another formulation of this 
test is that communications are privileged only if they remain within the small, “magic circle” 
of “closely related persons who are appropriate, even if not vital, to a consultation.”  United 
States v. Massachusetts Institute of Technology , 129 F.3d 681, 684 (1st Cir. 1997).  “The 
burden is on the agency to demonstrate that confidentiality was expected in the handling of 
these communications, and that it was reasonably careful to keep this confidential 
information protected from general disclosure.”  Coastal States , 617 F.2d at 863. 
In attempting to meet its burden, GSA has done two things. First, it has provided us 
with long lists of GSA employees who are said to have been involved, in one way or another, 
in dealing with the lease in question.  Respondent’s Response to Appellant’s Motion to 
Compel, Exhibits A-C. Second, it has argued, “In a purely pragmatic sense, it is questionable 
why one would be included on a communication if [that individual was] not related to the 
issue at hand in any way at all.”  Id. at 7.  This information and contention are far from 
sufficient to prove that each of the recipients of all the communications at issue was 
authorized to speak or act for GSA in relation to a subject of a communication, or was part 
of the magic circle of closely related persons who were appropriate, even if not vital, to a 
consultation.  To this point in the proceedings, GSA has not shown why any of the 
communications at issue should be privileged. 
We provide the following additional guidance with regard to the two privileges.  The 
attorney-client privilege does not protect every document that is transmitted between a lawyer 
and a client.  It protects confidential communications from clients to their lawyers made for 
the purpose of securing legal advice or services. It protects communications from lawyers 
to their clients only if the communications rest on confidential information obtained from the 
client.  Citizens for Responsibility & Ethics in Washington v. Office of Administration, 249 
F.R.D. 1, 4 (D.D.C. 2008) (citing Tax Analysts v. Internal Revenue Service , 117 F.3d 607, 
618 (D.C. Cir. 1997)). 
As to claims of attorney work product privilege, even if GSA is ultimately able to 
show that it met the test for confidentiality as to the individuals with whom a communication 
was shared, it must also set forth objective facts to show that the document in question was 

 
       
 
 
    
 
      
    
    
  
   
   
   
 
      
   
     
   
  
        
7 CBCA 395, 455 
prepared in anticipation of litigation or for trial, and that it was prepared by or for GSA or 
by or for a representative of GSA.  TAS Group, 07-2 BCA at 166,604; Caremark, Inc. v. 
Affiliated Computer Services, Inc. , 195 F.R.D. 610, 613-14 (N.D. Ill. 2000).  “[T]he work 
product privilege does not apply to documents that are prepared in the ordinary course of 
business or that would have been created in essentially similar form irrespective of the 
litigation. . . . [O]nly disclosures that are inconsistent with keeping the information from an 
adversary constitute a waiver of the work product privilege.”  United States v. Textron Inc. , 
507 F. Supp. 2d 138, 150, 152 (D.R.I. 2007) (quotation and citations omitted); see also 
Caremark , 195 F.R.D. at 615-16. 
3. During the course of discovery, GSA produced a privilege log which LFH 
considered inadequate.  LFH asked GSA to explain more fully why it believed that various 
documents were privileged.  In fleshing out its explanations, the agency changed some of its 
claims of privilege from attorney-client to attorney work product and vice versa.  LFH 
believes that this action merits a ruling that GSA has waived its claim of privilege as to the 
documents which are involved. 
As support for its position, LFH calls to our attention the statement in General 
Electric Co. v. Johnson, No. 00-2855, 2007 WL 433095, at *3 (D. D.C. Feb. 5, 2007), that 
“[f]ailure to assert [a] privilege within a reasonable time, without a showing of good cause, 
constitutes a waiver of the privilege.”  LFH also notes the statement in In re Honeywell 
International, Inc. Securities Litigation, 230 F.R.D. 293, 299 (S.D.N.Y. 2003) that “[p]arties 
should not be permitted to re-engineer privilege logs to align their privilege assertions with 
their legal arguments.” 
In response, GSA maintains that First Savings Bank, F.S.B. v. First Bank System, Inc. , 
902 F. Supp. 1356, 1361 (D. Kan. 1995), rev’d on other grounds , 101 F.3d 645 (10th Cir. 
1996), is instructive.  That decision contains these sentences:  “As the federal rules, case law 
and commentators suggest, waiver of a privilege is a serious sanction most suitable for cases 
of unjustified delay, inexcusable conduct, and bad faith. . . . [T]he sanction of waiver is best 
suited for the more serious discovery violations. . . .  The courts have been more circumspect 
in finding a waiver of a privilege objection.” 
We believe that GSA’s changes to its claims of privilege do not merit the sanction of 
waiver of privilege.  Even in General Electric , where the court did impose such a sanction, 
the basis of the ruling was a finding that the moving party had been prejudiced by the other 
party’s action.  2007 WL 433095, at *6. Here, GSA acted promptly, after LFH requested 
revisions to the agency’s privilege log, to make those revisions.  In doing so, it realized, and 
informed LFH, that some of the initial claims had not been justified. LFH benefited from 

 
          
 
   
  
   
   
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8 CBCA 395, 455 
GSA’s revisions and has not demonstrated that it was prejudiced by those revisions.  We 
deny the request for sanctions. 
4. In responding to LFH’s motion to compel the production of documents for 
which privilege was claimed, GSA filed a cross-motion asking the Board to require LFH to 
affirm that it has produced the single relevant, non-privileged document from the electronic 
mail account FLHANEYCO@AOL.COM, or to require LFH to produce all relevant, non-
privileged documents from that account.  LFH replied, “The fact that LFH has produced a 
single e-mail from a particular e-mail account is no indication that LFH has failed to meet 
its obligations under the Board’s rules . . . .  In accordance with the Board’s rules, LFH will 
continue to produce any responsive, non-privileged documents should any be created, and 
has, in fact already done so.”  Appellant’s Reply Brief at 32. 
LFH has effectively made the affirmation that GSA requests the Board to require the 
appellant to make.  We have no reason to doubt LFH’s statements.  Accordingly, we have 
no basis for imposing additional requirements on the appellant.  In re Application for an 
Order for Judicial Assistance in a Foreign Proceeding in the Labor Court of Brazil, 244 
F.R.D. 434, 438 (N.D. Ill. 2007); Cohn v. Taco Bell Corp. , No. 92 C 5852, 1995 WL 519968 
at *4 (N.D. Ill. Aug. 30, 1995). 
STEPHEN M. DANIELS 
Board Judge