_________________________________________________________________ ORDER ON FURTHER PROCEEDINGS: September 15, 1995 _________________________________________________________________ GSBCA 12915, 12961 HERMAN B. TAYLOR CONSTRUCTION CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Ogden, Lieberman, Gaughan & Stone, Houston, TX, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. BORWICK, Board Judge. These appeals involve (1) the termination for default of a construction contract by respondent, General Services Administration (GSA), and (2) a claim by Herman B. Taylor Construction Co. (Taylor Construction) for increased costs resulting from changes under the same contract. Taylor Construction has filed a request for production of documents which seeks, among other things, "any and all documents . . . that . . . are evidence of any and all communication you have had with any person or entity not a party to this lawsuit, regarding the project." Appellant's Request for Production of Documents 12. Taylor Construction also requests all communications between employees of GSA's management and inspection (M&I) contractor (3DI) and GSA. Appellant's Request for Production of Documents 3. In response to these discovery requests, GSA has filed an objection to production of twenty-seven documents based on the attorney-client or attorney work product privileges. GSA's objection is accompanied by a "privilege log," which summarizes each of the twenty-seven documents and specifies the privilege which it maintains is applicable to each document[foot #] 1; GSA has also submitted the documents to the Board for in camera inspection. We have reviewed the privilege log and documents. We grant in part GSA's objection. Background 1. Document one is a contact record of March 1, 1994, between the GSA contracting officer's technical representative (COTR) and GSA's M&I contractor, reciting a third party's recitation of a conversation between Herman B. Taylor, Taylor Construction's sole proprietor, and Taylor Construction's job superintendent[foot #] 2 for the construction contract, Mr. Steven Sherman. The third person allegedly overheard Herman B. Taylor ordering the job superintendent to backdate request for information (RFI) 239B and to blame a recent ceiling collapse on the M&I contractor. The Government maintains that the attorney- client privilege applies to this document. 2. Document two is a contact record dated March 7, 1994, be-tween the COTR and an employee of the M&I contractor, reciting the M&I con-tractor's conversation with the job superintendent. The job superintendent told the M&I contractor employee that he had backdated RFI 239B under duress from his employer. GSA maintains that the attorney work product privilege applies to this document. 3. Document three is a memorandum between two employees of GSA's M&I contractor; the memorandum recites the job superintendent's conversation with Herman B. Taylor, in which Herman B. Taylor allegedly discussed his intent to blame the ceiling collapse (which occurred on February 7, 1994) on the M&I contractor. In its privilege log, the Government does not identify a specific privilege applicable to this document. 4. Document four is a memorandum between two employees of the M&I contractor; the memorandum recites an employee's overhearing a telephone conversation between the job superin- tendent and Herman B. Taylor. When the employee confronted the job superintendent, the job superintendent confirmed that he had been instructed to type RFI 239B and to back date it. In its ----------- FOOTNOTE BEGINS --------- [foot #] 1 As noted below, the privilege log is incomplete; for eight documents summarized in the privilege log, counsel has failed to specify which privilege it believes applies. For these, we presume GSA rests on the attorney work product privilege. [foot #] 2 The job superintendent no longer works for Taylor Construction. ----------- FOOTNOTE ENDS ----------- privilege log, the Government does not identify a specific privilege applicable to this document. 5. Document five is a letter dated January 17, 1995, from the attorney for the job superintendent to GSA's counsel. GSA maintains that both the attorney-client privilege and attorney work apply to this letter. 6. Document six is a transcript of a Texas Employment Commission unemployment compensation hearing involving the job superintendent. GSA maintains that the attorney work product privilege applies to this document. 7. Document seven is an affidavit dated December 28, 1994, of an employee of GSA's M&I contractor relating conversations held the week before, between the employee and the job superintendent concerning missing time sheets. In its privilege log, the Government does not identify a specific privilege applicable to this document. 8. Document eight is a cover letter of March 9, 1995 from the job superintendent's attorney, forwarding to GSA's counsel information in the possession of the job superintendent. GSA maintains that both attorney-client privilege and attorney work product privilege apply to this document. 9. Document nine consists of two volumes of exhibits to a sworn witness statement (document fifteen) of the job superintendent taken by GSA counsel with the job superintendent's counsel present. GSA identifies these documents as those sent to GSA counsel by the job superintendent's attorney in March of 1995. The first volume of the two volume compilation consists of records from the project file or the job superintendent's personal file on the project. The second volume contains drafts of appellant's claim documents. Both volumes have the job superintendent's explanatory notes interpreting portions of the records. Presumably the documents with the attached explanatory notes were received by the job superintendent's counsel who forwarded them to GSA counsel. GSA maintains that these documents are exempt from production because of the attorney work product privilege. These documents were referenced as a package in a witness statement (document fifteen); GSA counsel did not separately question the job superintendent on each document. 10. Document ten is a memorandum of a conversation between the contracting officer and an employee of GSA's M&I contractor in which the employee relates a conversation between himself and the job superintendent relating to RFI 239B; i.e. that Taylor Construction intended to claim that the M&I contractor sabotaged the ceiling grid and that the M&I contractor would not accept terrazzo patchwork because the work was done by a black person. The Government maintains that both attorney work product and attorney-client privileges apply to this document. 11. Document eleven is an affidavit, dated June 26, 1995, by an employee of GSA's M&I contractor interpreting what work Taylor Construction performed on the boilers in the project. GSA argues that the attorney work product privilege applies to this document. 12. Document twelve is a sworn statement by GSA's project architect relating to the interpretation of scope of work of the contract. GSA maintains that the attorney work product privilege applies to this document. 13. Document thirteen is a memorandum, dated March 1, 1994, in which an employee of GSA's M&I contractor relates a conversation between the job superintendent and another employee of the M&I contractor relating to the alleged back dating of RFI 239B and Taylor Construction's claim of alleged sabotage concerning the ceiling. GSA maintains that the attorney work product privilege applies to this document. 14. Document fourteen is the COTR's calendar entry of March 2, 1994, reflecting the conversation referenced in paragraph thirteen. GSA argues that the attorney-client privilege applies to this document. 15. Document fifteen is the sworn witness statement, dated June 12, 1995, in question and answer form, by the job superintendent in response to questions posed by GSA's counsel. GSA maintains that the attorney work product privilege applies to this document. 16. Documents sixteen, seventeen, eighteen and nineteen are, respectively, a check from Taylor Construction dated December 17, 1993; a check from Taylor Construction dated January 21, 1994; an invoice to Taylor Construction dated January 11, 1993 and an undated invoice to Taylor Construction numbered 2251. GSA maintains that the attorney work product privilege applies to these documents. 17. Document twenty is an inquiry, dated April 3, 1995, from GSA counsel to the United States Postal Service. In its privilege log, GSA does not identify a specific privilege for this document. 18. Document twenty-one is a certificate of worker's compensation and employers' liability insurance dated November 18, 1992, issued by the Sheperd Insurance Agency to Gundaya Equipment, Inc. In its privilege log, GSA does not identify a specific privilege applicable to this document. 19. Document twenty-two is a response by the Texas Secretary of State, dated April 5, 1995, to GSA counsel. GSA does not identify a specific privilege for this document. 20. Document twenty-three is a request for information by GSA counsel to the Texas Employment Commission for a certified copy of the record of proceedings of that office. In its privilege log, GSA does not identify a specific privilege for this document. 21. According to the respondent's privilege log, document twenty-four consists of handwritten explanatory notes included in document nine, commenting on appellant's actions and positions. GSA maintains that the attorney work product privilege applies to this document. 22. Document twenty-five is an attendance worksheet, dated January 18, 1995, and compiled, at the request of the contracting officer, by GSA's M&I contractor from GSA's contract file. The worksheets summarize attendance at project meetings of Taylor Construction's supervisory personnel. GSA maintains that the attorney work product privilege applies to this document. 23. Document twenty-six is an affidavit of an employee of GSA's M&I contractor relating to the preparation of RFI 239B, installation of the drop ceiling, and Taylor Construction's alleged use of materials not specified by the contract in performing the work. GSA does not identify a specific privilege for this document. 24. Document twenty-seven is an intra-agency communication. GSA does not identify a specific privilege it thinks is applicable to this document. Discussion GSA argues that "matters for which a claim of attorney- client privilege have been asserted are those which have been presented to agency counsel by agency staff where a legal issue required attention, or where it was anticipated that further action of a legal nature would be required to resolve the issue. These matters were disclosed in confidence and with every expectation by the client ([GSA]) that the information would be maintained in confidence." Respondent's Claim of Privilege at 6. As to attorney work product, GSA maintains: "The attorney work product or the results of investigations made in anticipation of litigation, on the other hand is designed to protect the mental impressions or work product and theories of counsel and, in limited circumstances, where the ends of justice require can be waived by counsel." Respondent's Claim of Privilege at 6. The essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except that the protection be waived. BGW Limited Partnership v. General Services Administration, GSBCA 10501, 93-1 BCA 25,244, at 125,732. The privilege also protects communications from lawyer to client when such communication would reveal the substance of a confidential communication from the client. American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987). Here the documents which GSA specifically maintains are subject to the attorney-client privilege simply do not meet the elements of the privilege. Document one reflects communications between the GSA COTR and GSA's M&I contractor relating conversations that yet a third person overheard between Herman Taylor and the job superintendent. Document ten is similar. There is no communication in either of these documents between GSA client organizations and GSA counsel for the purpose of securing legal advice by GSA client organizations. Documents five and eight are communications from the job superintendent's attorney to GSA counsel; again, there are no confidential communication between attorney and client for the purpose of seeking legal advice. Document fourteen fails the attorney- client privilege tests for the same reason as the other documents. We consider whether any of the documents for which respondent claims privilege come within the attorney work product privilege, which is set out in Rule 26(b)(3), Federal Rules of Civil Procedure: Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, 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 materials 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. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A document is attorney work product if an attorney or the attorney's agent prepared the document in anticipation of litigation. Washington Bancorporation v. Said, 145 F.R.D. 274, 276 (D.D.C. 1992). A document qualifying as work product is either opinion work product or fact work product. Id. Opinion work product reveals the opinions, thoughts, and judgements of counsel, and receives absolute protection save for a showing of extraordinary circumstances. See Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985); Washington Bancorporation, 145 F.R.D. at 276. Work product that contains facts must be produced in response to a discovery request if the party seeking the document shows substantial need for the factual information contained in the documents and an inability to collect the same factual information or its equivalent without undue hardship. Washington Bancorporation, 145 F.R.D. at 276. The party seeking protection for material as attorney work product must show that the material was prepared because of the litigation and for no other purpose. Even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for the purposes of the litigation. In Re Leslie Fay Companies Securities Litigation, 161 F.R.D. 274, 280 (S.D.N.Y. 1995); Hardy v. New York News, Inc., 114 F.R.D. 633, 645-46 (S.D.N.Y. 1987). See Compagnie Francaise D'Assurance Pour Le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 41 (S.D.N.Y. 1984) (discovery request for third-party documents received by counsel granted; work product privilege not applicable because the documents were existing business records contemporaneous with events to which documents related).[foot #] 3 Documents two through four--the contact records and communi- cations between employees of the M&I contractor--do not by them- selves reflect preparation of the documents by GSA's counsel or his agents, in anticipation of litigation. GSA has not shown these documents were prepared because of these appeals. Documents five and eight, letters from the job superintendent's attorney to GSA counsel, are not protected by the work product privilege for the same reason. Document six is a transcript of a hearing of a Texas state agency and does not reflect GSA's counsel's trial preparation in anticipation of this litigation. Documents ten and thirteen are documents created contemporaneously with the events as they occurred, and have not been shown to be prepared in anticipation of the litigation. Document twenty-five is an attendance worksheet prepared at the request of the contracting officer, not GSA's counsel. Documents seven, eleven, twelve, and twenty-six--affidavits by the M&I contractor's employees--are not protected under the work product privilege because there is no indication that they were (1) created by GSA's counsel or his agent (2) in anticipation of this litigation. The record does not reflect who caused these statements to be made. ----------- FOOTNOTE BEGINS --------- [foot #] 3 In some jurisdictions, one exception to this rule is made for insurance company reports of accident investigations. An insurance company's investigation reports are not automatically disqualified from the work product privilege because they are made in the ordinary course of business. Suggs _____ v. Whitaker, 152 F.R.D. 501, 506 (M.D.N.C. 1993). ___________ ----------- FOOTNOTE ENDS ----------- Documents sixteen through nineteen and document twenty-one are business records of Taylor Construction or a subcontractor; again, they were not prepared by GSA counsel or his agent and do not reflect GSA counsel's trial preparation. We consider whether the transcript of the statement of the job superintendent given to GSA counsel (document 15) is protected work product. The seminal case on the attorney work product privilege, Hickman v. Taylor, 329 U.S. 495 (1947), involved witness statements taken, in private, by an attorney and then signed by the witnesses. Hickman, 329 U.S. at 498-99. The court held that the then existent Rule 30(b) gave the trial judge discretion to make a judgment as to whether the written statements should be produced, but that a "naked general demand" for the materials was insufficient to overcome the privilege. Id. at 512. Under Federal Rule of Civil Procedure 26(b)(3), non-party witness statements to attorneys (or their agents) prepared in anticipation of litigation are fact work product, which are protected unless the requesting party can show substantial need for the material. Suggs v. Whitaker, 152 F.R.D. at 506 (recorded statement of witnesses to automobile accident); Federal Deposit Insurance Corp. v. Cherry, Bekhaert & Holland, 131 F.R.D. 596, 605 (M.D. Fla. 1990) (statements of bank officers taken by Federal Deposit Insurance Corporation investigators); McNulty v. Bally's Park Place Inc., 120 F.R.D. 27, 29-30 (E.D. Pa. 1988) (statement of eye-witness to accident taken by insurance adjuster); In Re Convergent Technologies Second Half 1984 Securities Litigation, 122 F.R.D. 555, 564 (N.D. Cal. 1988) (written statements, taken by attorneys, and adopted by witnesses, of former employees of corporation). In this matter, GSA's counsel, during the discovery period of these appeals, took the sworn statement of the job superintendent, on issues raised in these appeals. Unlike the affidavits discussed above, the record is clear that this statement was a document created by GSA counsel in anticipation of this litigation. Taylor Construction only made a naked demand for the material, Appellant's Request for Production of Documents 12, and has not demonstrated substantial need for the document. Taylor Construction's counsel can depose or interview the job superintendent; if counsel cannot show the requisite substantial need[foot #] 4 to obtain the document in discovery, and GSA decides to use this document as an exhibit at trial, the privilege is waived, and GSA must provide a copy of the statement ----------- FOOTNOTE BEGINS --------- [foot #] 4 Such substantial need would depend on the ability of appellant to prove its case with other sources of information, Delco Wire & Cable v. Weinberger, 109 F.R.D. 680, __________________________________ 689-90 (E.D. Pa. 1986), and the availability of the job superintendent for depositions or interview, in view of the short time before the scheduled hearing. ----------- FOOTNOTE ENDS ----------- to Taylor Construction's counsel. Ryall v. Appleton Electric Co., 153 F.R.D. 660, 663 (D. Colo. 1994). As noted above, for a document to be covered by the work product privilege, an attorney (or his agent) must have created it. See Washington Bancorporation, 145 F.R.D. at 276; Hawkins v. South Plains International Trucks Inc., 139 F.R.D. 682, 684 (D. Colo. 1991). The first volume of document nine consists of records from appellant's project file or the job superintendent's personal file on the project. The explanatory notes (document twenty-four) attached to certain material in document nine, were not created by a GSA attorney or his agent; apparently, they were prepared by a non-party, i.e., the job superintendent himself, without the prompting or assistance of the GSA attorney. Those notes are not protected from production by GSA counsel's attorney work product privilege. The second volume of document nine consist of drafts of appellant's claim documents that came into the possession of respondent. Respondent cannot reasonably claim attorney work product for those documents; they would be, if anything, appel- lant's trial preparation material. To the extent that appellant's counsel does not already have copies of these documents, respondent's counsel is to provide copies to appellant's counsel. The job superintendent's explanatory notes for the second volume are not protected for the reasons discussed above. Documents twenty and twenty-three are communications between GSA's counsel and state and federal agencies requesting information for trial preparation in these appeals; these communications are attorney opinion work product as they reflect counsel's legal strategy, thoughts and opinion. Document twenty- two is a response to GSA counsel, which reflects counsel's trial preparation. The response is fact work product. Document twenty-seven is an intra-agency communication irrelevant to this litigation. Decision GSA's objection to production is GRANTED as to documents fifteen, twenty, twenty-two, twenty-three and twenty-seven. Taylor Construction has ten days from the date of this order to demonstrate substantial need for the information in documents fifteen and twenty-two. In all other respects, the objection to production is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge