___________________________________________ ORDER ON PROCEEDINGS: May 26, 1995 ___________________________________________ GSBCA 12294, 12295, 12523, 12690, 12710, 12841, 12842, 12907 SAE/AMERICON - MID ATLANTIC, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Peter M. D'Ambrosio, Mark E. Hanson, Eun K. Chung, and John Marshall Cook of Smith, Pachter, McWhorter & D'Ambrosio, Vienna, VA, counsel for Appellant in GSBCA 12294, 12523, 12690, 12710, 12841, 12842, and 12907; Lowell J. Noteboom, Robert J. Huber, and Robert H. Torgerson of Leonard, Street and Deinard, Minneapolis, MN, counsel for Appellant in 12294, 12523, 12690, 12710, 12841, 12842, and 12907; and Mark A. Vittese of Gravino & Vittese, Woodbury, NJ, counsel for Appellant in GSBCA 12295. Robert C. Smith, Martin A. Hom, M. Leah Wright, and Kevin S. Anderson, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. HYATT, Board Judge. ORDER ON PROCEEDINGS These appeals arise under a contract for the construction of the Trenton Courthouse Annex for the firm fixed price of $22,519,000. The appeals are from the contracting officer's decisions (a) denying claims for equitable adjustments and (b) terminating the contract for default. Each party has requested that the Board order production of documents the opposing party deems protected from discovery, principally under the work product privilege. The parties agreed to produce the contested documents for in camera inspection by the Board to determine the validity of the claimed privilege. Background The subject contract was awarded to SAE-Americon - Mid Atlantic, Inc. on April 26, 1991. The date of completion specified under the contract was to be within 760 calendar days after issuance of the notice to proceed. The first appeal, involving alleged differing site conditions and design deficiencies with respect to the drilling, furnishing, and installation of caissons into bedrock was filed on January 5, 1993.[foot #] 1 Other appeals, variously alleging design deficiencies, changed work, and delays, were filed thereafter. On October 22, 1993, the contracting officer terminated for default SAE's right to proceed with the work under the contract for "failure to prosecute the work with the diligence that will ensure its completion within the time specified by the Contract." SAE has appealed this action as well, in the case docketed as GSBCA 12710, and the various appeals filed by SAE concerning this contract have been consolidated for hearing and decision. On February 22, 1994, the Board, adopting a jointly-prepared schedule proposed by the parties, issued an order on further proceedings addressing, among other things, the conduct of discovery in the consolidated cases. In pertinent part, this order provided that: All documents not produced because privileged or otherwise not discoverable shall be identified by date, author, addressee, and general subject matter on an index to be furnished to all counsel. The parties eventually exchanged such indexes. The claims of work product privilege with respect to a number of the documents listed on the indexes have given rise to the cross-motions pending before the Board.[foot #] 2 ----------- FOOTNOTE BEGINS --------- [foot #] 1 This appeal was subsequently dismissed by joint agreement of the parties on December 12, 1994. The Government had moved for dismissal of GSBCA 12253 on the ground that the claim was never certified. Because the claim had subsequently been absorbed in a certified consolidated claim presented to and denied by the contracting officer, the parties agreed to dismiss GSBCA 12253 and pursue the issues in the appeal of this later contracting officer decision, which was docketed as GSBCA 12907. [foot #] 2 Although the majority of these materials are claimed to be subject to the work product privilege, a few contested documents are withheld on the basis of attorney-client privilege. ----------- FOOTNOTE ENDS ----------- Discussion The motions before the Board argue only that the claims of privilege are not valid. Neither party has made a showing that any claim of work product privilege that is validly asserted may be overcome. Thus, the only issue to be resolved is whether the work product privilege actually applies to the numerous documents submitted for review. As a general proposition, any relevant matter which is not privileged is subject to discovery. E.g., Michael Weller, Inc., GSBCA 10627-NHI, 91-3 BCA 24,335, at 121,578. Under the attorney work product doctrine first announced in Hickman v. Taylor, 329 U.S. 495 (1947), a qualified privilege is accorded to trial preparation materials. This privilege is codified in Federal Rule of Civil Procedure (FRCP) 26(b)(3), which provides that a party may obtain discovery of documents prepared in anticipation of litigation by or for another party only upon a showing that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. To the extent this showing is made and discovery is ordered, the tribunal shall nonetheless protect against disclosure of the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Notably, not every document generated by the parties once litigation becomes likely is protected by the work product doctrine. The notes to FRCP 26(b)(3), citing Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir. 1963), recognize that the privilege does not extend to documents and materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes. See also B.D. Click Co., ASBCA 25609, et al., 83-1 BCA 16,328, at 81,176-77. Rather, the work product doctrine applies to material generated for use in litigation -- i.e., to documents that would not have been created but for the pendency or imminence of litigation. Kelly v. City of San Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987). The Armed Services Board, in B.D. Click, recognized that it is not always clear when materials evaluating a claim for an equitable adjustment become entitled to the protection of the work product privilege: We do not view the contracting officer's final decision as the automatic line of demarcation between routine contract administration and preparation for litigation. Obviously, there may be instances where there is considerable preparation for litigation before the contracting officer's final decision has been issued. However, as we stated in Ingalls [Shipbuilding Division, Litton Systems, Inc., ASBCA 17717, 73-2 BCA 10,205], the mere fact that a request for equitable adjustment, a term synonymous with a claim, has been filed and is being analyzed does not bring the matter in close enough proximity to litigation to trigger the automatic application of the work product rule. Even where there may be initial disagreement with the claim by the opposing party litigation may not be anticipated to the extent necessary to bring the rule into play. We are again faced with a question which does not lend itself to hard rules but requires a case by case examination. 83-1 BCA at 81,177. Reading B.D. Click together with Kelly and Goosman, documents necessitated by contract administration requirements are not generally privileged simply by reason of the pendency or prospect of litigation. This Board, also addressing the circumstances in which the qualified privilege accorded to trial preparation materials may be applicable, has enumerated the following factors which may have pertinence to the inquiry: In order to decide whether a document is discoverable, courts look to see whether litigation was reasonably anticipated when the document was prepared; whether the document was prepared due to the prospect of litigation; whether there is a sufficiently concrete connection between the document and possible litigation; whether the document was generated in anticipation of probable litigation; whether the document was created when litigation was fairly foreseeable; whether the document was prepared before counsel was retained; and whether the document was created when the probability of litigation was substantial and imminent. Ed A. Wilson, Inc. v. General Services Administration, GSBCA 12596, 94-3 BCA 26,998, at 134,491. The burden is on the party opposing disclosure to establish that the privilege applies. Id. (citing, e.g., Carter v. Gibbs, 909 F.2d 1450 (Fed. Cir. 1990)). Respondent's Documents Respondent submitted seventy documents for in camera review based on appellant's challenges to the claims of privilege. The status of a few of these documents has already been resolved: (1) materials designated by respondent as proprietary (documents 3 and 4) will be provided to counsel for appellant under a protective order issued by the Board; and (2) respondent has voluntarily agreed to release documents 29, 44, 45, and 70 to appellant. The remaining documents withheld by GSA are said to be covered by the work product doctrine and not discoverable by appellant. In support of its position, respondent maintains that the documents for which it asserts work product privilege generally fall into three categories: (1) documents prepared after appellant's contract was terminated for default; (2) documents prepared after appellant filed an appeal of the contracting officer's final decision with regard to a particular claim; and (3) documents prepared after appellant filed a claim with respondent. Respondent contends that under the facts and circumstances of this case, the prospect of litigation could reasonably be anticipated upon the filing of appellant's claims. A review of the documents, however, simply does not create the impression that the initial filing of the claims automatically triggered an expectation on the part of the Government, its construction quality management (CQM) contractor, and its architect, that litigation would ensue. As B.D. Click points out, the expression of disagreement with claims submitted by a contractor does not necessarily trigger application of the work product rule. Even if we accepted respondent's argument, however, as a practical matter it seems clear that many of the withheld documents were generated in response to the contracting officer's request for input to assist in formulating decisions on the various claims submitted by SAE. The immediate purpose of the materials so created was to assist the contracting officer in his contract administration duties, not to defend against litigation. These do not fall into the category of documents that would not have been created "but for" the probability or pendency of litigation. Documents 1 and 2 These are entitled "Quarterly Report of Contractor Claims and Appeals." They are prepared by the contracting officer on a standard form. Although the documents were prepared after the filing of the appeals, they appear to be routine reports and contain very general information concerning the nature of the appeals. There is no indication on the face of the documents, or in respondent's submissions, that they were prepared at the request of GSA's attorneys for the purpose of trial preparation. Thus, the work product privilege does not appear to apply across the board to protect these documents, which should be disclosed to appellant. Items 13 and 14 on each form are covered by the work product rule, however, and may be redacted. Document 5 This is a letter to the contracting officer from O'Brien- Kreitzburg & Associates, Inc. (OKA), GSA's project management company, summarizing the status of SAE's pending change order final decision requests. The letter is dated December 9, 1992, prior to the filing of any appeals by SAE and well in advance of the termination of SAE's contract for default. The letter was written in response to a request from the contracting officer. There is no reference to an expectation of litigation in the letter, nor does it appear that any attorneys were involved in the request that the summary be prepared. Rather, the summary seems to have been requested as a routine matter of contract administration, to assist the contracting officer in assembling the information needed to decide SAE's claims. As such, this document has not been demonstrated to be covered by the work product doctrine and is discoverable. Documents 6 and 7 These documents are letters authored by The Vitetta Group (TVG), the project architects. The letters were written in September 1992, before the filing of any appeals by SAE, in response to a request for input from the contracting officer. Specifically, the contracting officer sought TVG's views with respect to SAE's caisson claim, which was pending at that time. The contracting officer's underlying request for information is attached to TVG's responses. It is clear from a review of the documents that they were prepared as a matter of routine contract administration for the purpose of enabling the contracting officer to write a final decision addressing SAE's claim. These documents are discoverable. Documents 8 and 9 These letters were also authored by TVG, in early 1993. Although, as respondent points out, TVG in these letters refers to SAE's "disputes/claims" there is no clear indication that the letters were created for the purpose of litigation. Respondent has not established that the privilege applies; these letters are discoverable. Documents 10, 11, 12, 13 These documents were prepared by the architect and comment on claims asserted by SAE under the contract. Although dated after litigation began and the termination of the contract took place, the comments seem to have been solicited by the contracting officer for the purpose of addressing pending SAE claims and administrative termination actions. These documents should be produced. Document 14 This document, dated January 5, 1993, is a report authored by OKA, at the request of GSA, to offer options and recommendations concerning means by which substantial completion of the project could be achieved by November 1993. There is no reference on the face of the document to anticipated litigation. (SAE's first appeal concerning the caisson claim was also filed on January 5, 1993.) This report is discoverable. Documents 15, 18, 19 These letters from OKA to the contracting officer comment on potential problems in takeover agreement proposals negotiated subsequent to the default termination of SAE. There is no indication that any of these letters was prepared in anticipation of the instant litigation. These letters are not protected by the work product doctrine. Document 16 This letter from OKA to the contracting officer does offer impressions and analyses of claims and litigation postures. The letter comments on and strategizes with respect to the pending claims and litigation and as such is appropriately protected under the work product doctrine. Document 17 This letter discusses an appropriate schedule to be established for completion of the work by the takeover contractor. It is not protected by the work product privilege and should be produced. Document 20 The purpose of this letter, authored by OKA, is to comment on SAE's claim with respect to the sound system redesign and to make recommendations to GSA on an approach for procuring a sound system for the project. The thrust of the letter is thus contract administration. The document is not covered by the work product doctrine and should be produced. Documents 21 and 23 Document 21 is a draft report, dated September 8, 1993, authored by OKA in response to a request from GSA. It discusses SAE's claim and then-pending appeal (the appeal was filed on August 5, 1993) concerning construction of the limestone exterior panels of the building. Document 23 is a letter dated August 22, 1993, summarizing and analyzing the same claim. These materials, which formulate defensive strategies, are entitled to the protection of the work product privilege. Document 22 This OKA document provides comments to the contracting officer on how to approach forthcoming negotiations with SAE concerning the establishment of a new completion date for the project. It appears to address administration and performance issues, as opposed to the conduct of litigation. The document is not covered by the work product rule and should be produced. Documents 24 and 25 These documents, which address additional work done by OKA, are not subject to the work product rule and should be produced to appellant. The documents contain OKA's proprietary financial information and may be designated as protected pursuant to the Board's protective order dated April 26, 1995. Document 26 This document is a memorandum, dated September 25, 1992, from TVG to OKA, offering comments on SAE's caisson claim. On its face, this document does not appear to be anything other than a memorandum routinely generated in the process of contract administration, which is discoverable. Documents 27 and 49 These documents consist of a letter dated October 1, 1992, and a second letter dated October 5, 1992 (correcting the original letter), providing comments, at the request of the contracting officer, on SAE's claim for equitable adjustment based on a differing site condition. The comments are for the purpose of assisting the contracting officer in preparing a response to SAE's claim. This correspondence predates the filing of any appeal by SAE and also appears to be a response to a routine request made in the contract administration process. As such, the work product rule has not been shown to be applicable. Documents 28 and 42 These OKA documents provide analyses of various SAE claims, presumably for the contracting officer's use in arriving at a final decision. As such, they fall into the category of a document generated to assist in contract administration and performance rather than for the purpose of litigation. These documents should be produced. Document 30 This is a letter, dated December 8, 1993, from OKA to the contracting officer providing an analysis of remaining claims received recently from SAE. As best as can be determined from the contents of the letter, it was prepared for the purpose of assisting the contracting officer in preparing a final decision, rather than for use in pending or anticipated litigation. Documents 31-41 These are a series of reports prepared by OKA analyzing SAE's various claims. Unlike the letters which appear to have been prepared for the purpose of responding to the claims in contracting officer decisions, these documents are more representative of the type of internal materials that would be prepared for purposes of defending against pending or anticipated litigation. They were all prepared after the termination for default action. These documents may reasonably be accorded protection under the work product doctrine. Document 43 This is a proposal, dated August 2, 1993, prepared by OKA for technical assistance in responding to SAE's burgeoning claims. Since it contains some proprietary information concerning OKA's and TVG's costs, it may be provided to appellant under the Board's protective order dated April 26, 1995. Documents 46 and 47 These letters refer to complaints filed in GSBCA 12253 (the caisson appeal) and GSBCA 12295 (sprinkler system) and respond to the contracting officer's request for technical input responding to those complaints. These letters are properly subject to the work product privilege. Document 48 This letter, objecting to the release of certain documents to SAE under Freedom of Information Act, is not covered by the work product doctrine. It may be designated as protected under the Board's order dated April 26, 1995, however. Document 50 This letter, authored by OKA and addressed to the contracting officer, provides substantial analysis and commentary concerning SAE's differing site claim in connection with the installation of caissons. Given that the letter was prepared on September 30, 1992, well in advance of the filing of an appeal at the Board, and that the tenor of the letter suggests it is offering arguments to the contracting officer to consider in addressing the claim, the application of the work product rule has not been demonstrated by respondent. Document 51 This document may reasonably be construed as offering OKA's thoughts with respect to defense of a pending GSBCA appeal and, as such, is exempt from production under the work product doctrine. Documents 52 and 53 These documents provide OKA's comments on SAE submittals and claims in connection with the project prior to the termination for default. They appear to be intended to advise the contracting officer on appropriate negotiation postures to assume with SAE and are not, based on their content, covered by the work product privilege. Document 54 This is a report prepared by OKA in response to the submission of SAE's consolidated claim for a contracting officer's decision. The report is dated June 28, 1994, a point in time when the litigation of the termination for default and underlying claims was well underway. The report expressly acknowledges the pending litigation. By this time, the possibility that this claim would also be litigated was far from remote -- the scheduling order issued on February 22, 1994, squarely contemplated, and set forth dates for, the submission of the claim, the issuance of a contracting officer's decision, and the filing thereafter of an appeal of that decision. This report is properly subject to the work product privilege. Document 55 This letter, from OKA to the contracting officer, is dated December 10, 1992, and addresses SAE's request for a final decision on its claim concerning the exterior wall metal stud system. This predates the filing of an appeal on this claim by SAE, and the letter does not on its face indicate an expectation of litigation. Rather, it appears to respond to a routine request for input to assist the contracting officer in preparing a decision. As such, the privilege has not been shown to be applicable. Document 56 This letter, also from OKA to the contracting officer, simply summarizes the status of SAE's change order and final decision request. The letter is dated December 9, 1992, prior to the filing of any appeals, and makes no mention of expected litigation. The work product privilege has not been shown to apply to this document. Documents 57 and 58 These letters, dated respectively December 9 and 10, 1992, comment, at the contracting officer's request, on additional SAE claims and requests for final decisions. These are discoverable. Documents 59 - 63, 68[foot #] 3 These documents were prepared for the purpose of analyzing and commenting upon the complaints filed by SAE in appeals at the Board of final contracting officer decisions. These are not discoverable. Document 64 This letter was written by the project architect, TVG, for the purpose of submitting a cost proposal for the time required to prepare a technical response to SAE's exterior wall claim. Although it is not clearly protected under the work product rule, respondent may produce this letter subject to the Board's protective order. Documents 65 and 69 Although written after the termination for default, these OKA documents comment on recent SAE submittals seeking equitable adjustments under the contract. The documents contain routine contract administration advice, and make no mention of litigation. The work product privilege has not been shown to apply. Document 66 ----------- FOOTNOTE BEGINS --------- [foot #] 3 Documents 59 and 68 are the same. ----------- FOOTNOTE ENDS ----------- The cover sheet to this correspondence was generated by TVG in December 1993. The document includes copies of several earlier letters updating GSA on various project items. Although there is a statement that certain outstanding issues would be submitted to the Board, the document was generated to provide information to the contracting officer on the status of contract items, not for purposes of defending or pursuing litigation. This is discoverable. Document 67 This letter, dated April 29, 1993, provides OKA's comments on the complaint filed by SAE in GSBCA 12994. This is properly claimed to be work product. Appellant's Documents Appellant has submitted some 276 documents for in camera review and asserts the same global argument as did respondent to justify invoking the protection of the work product doctrine -- i.e., that litigation was reasonably anticipated when a claim arose. Thus, the analysis developed above with respect to respondent's claims of privilege for its documents applies equally to appellant's documents. In addition, appellant states that a number of documents on its list will be released pursuant to the Board's protective order. These are: Documents 60, 81, 114, 119, 143, 145*, 147, 148-150*, 156, 166, 168, 171, 197, 198, 212, 233-35, 244, 249-50, 252-53, 260-61, 263*, 264-65, 266*, 267, 268, 270*, and 274*. The documents marked with an asterisk had not been located at the time appellant's memorandum was submitted. Appellant has agreed to produce these documents to GSA immediately if they are located. In addition, the following documents, for which a claim of privilege is made, had not been located at the time of appellant's in camera submission and were not provided for review: 75, 91, 103, 153, 160, 165, 172-73, 177, 183, 185-86, 188, 190, 199-201, 208, 213, 226, 262, 269, and 271- 73.[foot #] 4 Finally, it should be noted that two of the documents submitted are duplicates: 43 and 95. Document 1 This is a handwritten draft with no date or authorship evident on its face. Counsel represents that it was prepared in contemplation of litigation against a non-performing subcontractor and contains SAE's assessment of that contractor's ----------- FOOTNOTE BEGINS --------- [foot #] 4 In addition, documents 73 and 86 are spreadsheets submitted on computer disks. Appellant has been asked to identify the format to permit the Board to access the documents or alternatively to submit hard copies of these documents. ----------- FOOTNOTE ENDS ----------- liability. Since it is not possible to ascertain from the document that the privilege is properly applicable, the document must be produced. Documents 2, 66, 74 The handwritten notations on document 2, and contents of documents 66 and 74 appear to support SAE's contention that these documents were created as part of the trial preparation process. As such, these documents are exempt from discovery. Documents 3-14, 16-34, 37-39, 41-47, 51, 54, 57 These documents, generally dated in 1991 and 1992, address issues that arose in contract performance prior to the filing of any formal complaint at the Board. The documents consist of such items as correspondence with subcontractors and consultants, scheduling studies prepared by consultants, and in-house SAE memoranda concerning claims and potential claims to be filed by SAE with the Government under the contract. There is generally no indication, on the face of these documents, of attorney involvement. Although some of SAE's and its subcontractors' and consultants' thought processes with regard to these claims and contract performance issues in general are revealed in these documents, the principal purpose of the documents is compiling information necessary to present a formal or informal claim to the contracting officer as required under the contract. Moreover, the time frames in which these documents were generated weighs against the likelihood that the materials were intended for use in eventual litigation.[foot #] 5 Given the standard clauses in Government contracts, and the contractually- dictated procedure for submitting claims and obtaining decisions from the contracting officer prior to the institution of a lawsuit, the mere fact that the contractor anticipated that the Government might disagree with its positions in whole or in part is not sufficient to invoke the privilege. Considering the overall nature of these documents, and lack of evidence on the face of the documents themselves that they were prepared to aid in future litigation, rather than as a necessary part of the claims submittal process, a process that is a routine and necessary aspect of the performance and administration of a Government contract, we cannot determine that the work product privilege has properly been invoked by appellant here. ----------- FOOTNOTE BEGINS --------- [foot #] 5 This is the case despite the occasional passing comment in a few of the documents acknowledging that if negotiations are not successful, litigation may ensue. These comments reflect a recognition that GSA was not necessarily disposed at the time to accede to SAE's positions, rather than the type of expectation, more reasonably formed near the conclusion of an ongoing negotiation process, that litigation would be necessary to obtain relief. ----------- FOOTNOTE ENDS ----------- A c c o r d i n g l y , t h e s e d o c u m e n t s a r e discoverable.[foot #] 6 Documents 15, 52, 53, 55 Document 15 is a memorandum, dated March 18, 1992, from SAE's project manager to senior SAE management. It summarizes the status of the Trenton construction project, in particular the schedule. Document 52 appears to be an internal SAE memorandum concerning the project. The author and recipients are not indicated on the document, which appears to have been generated in September or October of 1992. Nothing on the face of either document suggests preparation in anticipation of or for use in eventual litigation with GSA. Document 15, moreover, is dated nearly a year prior to the filing of any formal actions at the Board. Under the circumstances, SAE has not shown that the work product rule properly applies to these documents. Documents 53 and 55 are project status reports, prepared by the project manager, for the periods ending October 31 and November 30, 1992. Tab D of Document 53 is a memorandum prepared for SAE's counsel. The memorandum is characterized as an overview and is expressly identified on its face as "privileged and confidential, prepared for legal counsel." In addition, the document specifically states the expectation that claims will be rejected by GSA and that litigation at the Board will be necessary. Tab D is properly withheld under the work product privilege. A similar tab is included in the November report and also is privileged. The remainder of both documents is discoverable. Documents 35-36, 48-50, 105-07, 113, 123-42 These "documents" are actually compilations of many documents in notebooks. The documents were collected and grouped by counsel on behalf of SAE and were prepared at a point in time when SAE was already in, or clearly anticipated being in, litigation with respect to this contract and the matters raised in the documents. The notebooks are denominated by SAE as "issue books" or "issue files." The notebooks reflect SAE's counsel's thought processes and impressions as to what documents are relevant to which issues and would not have been prepared but for the litigation. SAE states in its opposition to respondent's motion to compel discovery that the underlying materials included in the issue books have been independently disclosed to SAE. Thus, production of these notebooks would serve no purpose other than to reveal the trial preparation efforts of SAE's counsel. As such, the issue books are properly exempt from discovery under the work product rule. ----------- FOOTNOTE BEGINS --------- [foot #] 6 Documents containing proprietary pricing information of appellant's consultants may be submitted under the protective order. ----------- FOOTNOTE ENDS ----------- Documents 56, 59, 62 These documents were prepared for the purpose of pursuing litigation and are exempt from discovery. Documents 58, 79, 92, 99, 101, 102 SAE describes these documents as discussions of overall project strategy in reaction to "GSA-caused" problems and asserts that the documents warrant protection as work product privileged because they reflect "considerations of law and analysis of facts involved in SAE management decisions and litigation strategy." Document 58 is an undated memorandum entitled "Delay Administration Procedure." It does address strategies for tracking delay in the project, but gives no indication on its face that it was prepared for the purpose of pursuing litigation. It could as easily be a contract administration document. Document 102 is a summary, prepared for SAE management, of SAE's time impact analysis. It also seems to have been prepared as a matter of contract administration. SAE has not met its burden to show that the work product privilege applies to these documents; the documents are discoverable. Document 79, dated April 1993, and document 101, dated September 1993, are summaries of claims, including some already pending at the Board. Although there is no clear indication on the face of these documents as to why they were prepared, or for whose use, given the discussion of pending litigation these documents may be accorded the work product privilege. Document 92 is simply an internal SAE memorandum forwarding two FAR clauses to a subcontractor. Document 99 contains handwritten notes, but no indication on its face that it was prepared for use in litigation or in anticipation of litigation. These documents are discoverable. Documents 61, 67, 70-72, 76-78, 82-85, 96, 170 These documents represent the work product of an SAE consultant with respect to analysis and preparation of SAE's exterior skin claim. On the face of the documents, they were prepared to assist in presentation of a claim to the contracting officer. Although SAE asserts that the consultant was retained to prepare the claim and subsequent analyses as a means of assisting in the litigation process, the documents do not reveal this and no independent evidence such as an affidavit or other corroborative documentation has been provided to support this assertion. Accordingly, SAE has not demonstrated that the work product privilege properly applies. Documents 63-65, 90 These documents also reflect correspondence between SAE and its subcontractors concerning claims under the Trenton project. Although the time frames (1993) are closer to the point when litigation began, once again there is no reason to conclude from reading the documents that they were prepared for the pursuit of litigation -- rather, these documents seem to have been generated as part of the contract performance and administration process. Documents 68-69, 80, 100, 144, 146, 176, 246, 251 These documents are properly covered by the work product privilege. Documents 87, 89, 93 These documents contain SAE's handwritten notes on correspondence between SAE and GSA. They have been withheld on the ground that the handwritten notations reflect thoughts and strategies for litigation on the issues discussed in the documents. Although the handwritten notations reasonably can be said to reflect the thoughts and reactions of SAE personnel concerning contract performance issues, it is not clear from the content of the notes that litigation was contemplated or pending and that the notes were made with that purpose in mind. SAE has not otherwise demonstrated that the privilege is applicable; therefore, these documents should be produced. Document 98 This letter from SAE to Seaboard, SAE's surety, recognizes the existence of litigation, and the possibility of additional claims, but was not written for the purpose of preparing for litigation -- it was intended to keep Seaboard informed. SAE has not shown that the work product privilege should extend to this document. Documents 104, 108-09, 111-12, 120, 152, 154-55, 157-59, 162, 164, 167, 189, 191, 204, 206, 209, 215-17, 219-20, 222, 224-25, 228, 241-42, 259 These items consist of correspondence with subcontractors regarding subcontractor claims and the need for information to support the claims. Again although the thought processes of these parties with respect to pursuit of the claims is revealed, there is no indication on the documents that they were prepared other than as part of the routine process of contract administration. There is no basis to conclude this correspondence was generated for the purpose of pursuing or defending against litigation. SAE has not met its burden to establish that the privilege applies. Document 110 From its contents, this memorandum appears to have been prepared as a result of pending and anticipated litigation and is the type of document that would normally be accorded the work product privilege. Documents 115-18, 121 These documents relate to contractual procedures and issues with respect to completion of the project following SAE's termination for default. These were necessarily prepared as a matter of contract administration. SAE has shown no basis for invoking work product privilege. Document 122 This document, dated December 22, 1993, consists of a cover memorandum and attachments concerning issues with a subcontractor and the assignment of his subcontract to the surety. It is authored by an SAE employee and labeled "Privileged and Confidential; Attorney-Client Information." It outlines the situation, discusses the SAE employee's thoughts, and contains a request for advice. Copies were sent to counsel and other SAE employees involved in the Trenton Courthouse project. This document is exempt from discovery under the attorney-client privilege. Document 151 This document contains a series of undated memoranda chronicling certain subcontract issues outstanding at the time of the termination for default action. There is no indication of who wrote the memoranda or why they were written. SAE has not elaborated in its submission on the origin or purpose of the document. It is not possible to ascertain from its contents whether this document was prepared for use in litigation or for ordinary business purposes. In the absence of sufficient information to determine if the privilege applies, the document must be produced. Document 163 This is a routine exchange between SAE and Seaboard in which Seaboard encloses letters to be sent to GSA and asks SAE to fill in some minor blanks. SAE has not demonstrated how the work product privilege would apply to this correspondence. Documents 174-75, 203, 205, 207, 210-11, 214, 221, 223, 227, 229-32, 236-40, 243, 245, 247-48, 275 SAE urges that the work product privilege should apply to these documents which consist of internal subcontractor documents and correspondence with respect to the preparation and assertion of their claims under the SAE prime contract. Regardless of whether the subcontractors might have been able to anticipate litigation at the time these documents were generated, it is not clear from reading them that they had any other purpose than pursuing a contractual right to recovery. There is no evidence of attorney involvement; nor do the documents appear to have been prepared for use in litigation. SAE has not shown that the privilege should be accorded to these documents. Documents 178-82, 184, 187, 194, 202, 254-58 These documents appear to relate to efforts necessary for subcontractors to prepare claims under the contract. Again, although SAE asserts that they were prepared in anticipation of litigation, nothing on the face of the documents supports the contention that the work product doctrine is applicable, and SAE has not met its burden to establish the privilege is properly claimed. Documents 192-93, 195-96, 218 This correspondence is between subcontractors and their attorneys, created for the purpose of seeking and providing legal advice. These documents are properly withheld under the attorney-client privilege. Decision Of the documents submitted by respondent, the following are determined to be properly exempt from discovery in their entirety under the work product doctrine: 16, 21, 23, 31-41, 46-47, 51, 54, 59-63, 67. All other documents are to be produced to the extent directed above. Of the documents submitted by appellant and reviewed by the Board, the following have been determined to be properly exempt from discovery pursuant to the work product or attorney-client privilege: 2, 35-36, 48-50, 56, 59, 62, 66, 68-69, 74, 79-80, 100-01, 105-07, 110, 113, 122-42, 144, 146, 176, 192-93, 195-96, 218, 246, 251. All other documents reviewed by the Board are to be produced to the extent directed above. ___________________________ CATHERINE B. HYATT Board Judge