Thursday, August 16, 2012

Attorney-Work-Product Doctrine

The attorney-work-product doctrine protects documents and other memoranda prepared by an attorney in contemplation of litigation. Such documents include private memoranda, written statements of witnesses, and mental impressions of personal recollections prepared or formed by an attorney in anticipation of litigation or for trial.

As its prupose is to protect the adversarial trial process by insulating the attorney's preparation from scruitiny, the work-product rule ordinarily does not attach until at least some claim, likely to lead to litigation, has arisen. Courts have also accorded work-product protection to materials prepared by non-attorneys who are supervised by attorneys.

Contractors sometimes invoke the attorney-client privilege in refusing to provide requested documents to auditors and other Government agents. But auditors are a questioning lot (as they should be) and often suspect that such claims may not be substantive. If a contractor asserts the attorney-client privilege or the attorney-work-product doctrine, DCAA guidance requires the auditor to request the contractor to explain two things and they will request the explanation in writing.

  1. the basis of the assertion
  2. why the contractor cannot provide the requested information or some alternative, non-privileged information that will meet the auditor's needs.

If the auditor is not satisfied with the above written explanation, the denial may be escalated into an access to records issue. That's never a good thing and should be avoided where possible. Contractors should look for ways to support the propriety of costs charged to Government contracts by other means, if possible. Examples of non-proprietary data that may be useful include filings with a court that are available to the public, contractor's summaries of data, other public filings, etc. 

Many contractors employ in-house legal counsel. We recall a situation where a contractor took the position that everything the in-house counsel did was protected from disclosure to the Government. That position did not hold up too long when it was pointed out that counsel was involved in reviewing solicitations, proposals, and contract files among his other duties.

Unless there is litigation, pending litigation, or a situation likely to lead to litigation, success in asserting attorney-client privilege as a basis for denying access to records will be limited. Where there are legitimate concerns, contractors should work with the Government to find ways of satisfying their requirements without having to disclose privileged data.

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