Kansas City Power & Light Co. v. United States

In the United States Court of Federal Claims
No. 15-348C
(Filed Under Seal: August 9, 2018)
(Reissued for Publication: August 30, 2018)
*************************************
KANSAS CITY POWER & LIGHT CO., *
*
Plaintiff, *
* Motion to Compel; Attorney-Client
v. * Privilege; Work-Product Doctrine; At-Issue
* Waiver; Common-Interest Rule; Joint-
THE UNITED STATES, * Defense Doctrine; Attorney’s Fees
*
Defendant. *
*************************************
William L. Yocum, Kansas City, MO, for plaintiff.
Amanda L. Tantum, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Chief Judge
In this lawsuit, plaintiff Kansas City Power & Light (“KCP&L”) seeks indemnification,
pursuant to a contract, from defendant for the cost of settling a wrongful death lawsuit. The
parties are currently engaged in discovery, but they have been unable to resolve some of their
disputes without the court’s assistance. Currently before the court is defendant’s motion to
compel plaintiff to supplement its responses to various interrogatories and requests for
production of documents (“request(s) for production”) pursuant to Rule 37(a)(3)(B)(iv) of the
Rules of United States Court of Federal Claims (“RCFC”). Defendant served discovery requests
seeking information1 regarding plaintiff’s actions during the underlying wrongful death lawsuit
as well as related activities following the conclusion of that matter on the theory that such
information is necessary to evaluate the reasonableness of plaintiff’s settlement costs and
attorney’s fees. Responding to defendant’s discovery requests, plaintiff withheld information on
 The court initially issued this Opinion and Order under seal with instructions for the
parties to propose any redactions. The parties informed the court that no redactions were
necessary.
1
Except where indicated by the context, the term “information” refers to discoverable
materials contemplated by both RCFC 33 and RCFC 34.
the basis that it is protected by the attorney-client privilege or work-product doctrine.2
Defendant seeks the production of that information on the basis that plaintiff (1) failed to
establish that the withheld information is privileged and (2) waived any privilege by either
putting the subject of the discovery requests at issue or sharing the requested information with a
third party. Defendant also contends that it has a substantial need for the information such that
plaintiff remains obligated to produce responsive documents3 notwithstanding the application of
the work-product privilege. For the reasons discussed below, the court grants in part and denies
in part defendant’s motion.
I. FACTS AND ALLEGED FACTS
A. Prior Litigation
Plaintiff alleges that, in August 1997, it” entered into a utility contract with the United
States General Services Administration (“GSA ) pursuant to which plaintiff would provide
electrical service to the Hardesty Federal Complex and other locations. Plaintiff also alleges that
the contract incorporated a Tariff, which included the following indemnity provision:
Paragraph 4.12: INDEMNITY TO [PLAINTIFF]: [GSA] shall
indemnify, save harmless and defend [plaintiff] against all claims,
demands, cost or expense, for loss, damage or injury to persons or
property, in any manner directly or indirectly connected with, or
growing out of the distribution or use of the electric service by
[GSA] at or on the [GSA]’s side of the point of delivery.
Def.’s Mot. Compel (“Def.’s Mot.”) App. 39.
Plaintiff further alleges that, on August 10, 2006, David Eubank was working in one of
the Hardesty Federal Complex buildings when he received burns from an arc blast. This incident
purportedly occurred at a switchgear located inside the GSA-owned building—downstream from
plaintiff’s point of delivery of electrical services. Mr. Eubank died from his injuries on August
18, 2006.
Mr. Eubank’s wife, on behalf of herself and her sons, filed a wrongful death lawsuit
(“Eubank action”) against KCP&L based on the circumstances of Mr. Eubank’s death. After the
2
Courts addressing information protected by the work-product doctrine generally use the
term “work-product privilege” when discussing the application of the doctrine, see, e.g.,
Harkcon, Inc. v. United States, 132 Fed. Cl. 697, 704 (2017); see also United States v. Nobles,
422 U.S. 225, 238 (1975) (explaining that the doctrine “provid[es] a privileged area”), although
this practice is not without controversy, see generally Sherman L. Cohn, The Work-Product
Doctrine: Protection, Not Privilege, 71 Geo. L.J. 917 (1984). The term “work-product
privilege” will be used in this opinion.
3
Except where indicated by the context, the term “documents” refers to discoverable
materials contemplated by RCFC 34.
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lawsuit was filed, KCP&L allegedly tendered the defense to the GSA, but the GSA did not
undertake the defense. As a result, KCP&L retained its own counsel to defend against the claims
while remaining in communication with Associate Electric & Gas Insurance Services Limited
(“AEGIS”), KCP&L’s excess insurer, regarding the case.4 On October 30, 2007, KCP&L filed a
third-party petition against Mr. Eubank’s supervisors—two GSA employees—seeking
contribution or indemnity. The United States substituted itself for the GSA employees and
removed the case to federal court. On April 17, 2009, the United States was dismissed from the
litigation, and the case was remanded to state court. Subsequently, KCP&L engaged in
mediation with the Eubank action claimants, which included providing a mediation statement to
the mediator on December 12, 2009. KCP&L continued to engage in settlement discussions with
Mrs. Eubank before agreeing to pay her $2.25 million to settle the case. In exchange for the
payment, the Eubank action claimants released all potential claims against KCP&L and any other
potential defendants arising from the facts related to Mr. Eubank’s death except for any right to
collect future Federal Employee Compensation Act benefits. The settlement was approved by
the presiding judge on May 18, 2010. KCP&L alleges that it incurred $1,756,138.14 in legal
expenses related to the Eubank action by the time that the settlement was finalized.
After settling the case, KCP&L began the process of seeking to recoup its expenses. In
late September 2010, KCP&L requested and received reimbursement for part of its settlement
and legal expenses from AEGIS.5 Having reached a settlement, plaintiff and AEGIS continued
communicating concerning potential claims against the United States related to the Eubank
action. But on September 12, 2012, AEGIS and plaintiff entered into an agreement in which
AEGIS waived any right to subrogation or reimbursement related to the Eubank action. On
February 1, 2013, plaintiff sued the United States for indemnification of the settlement costs and
legal expenses related to the Eubank action. The United States moved to dismiss plaintiff’s
indemnification case, which led the parties to file a joint stipulation of dismissal without
prejudice because plaintiff had failed to exhaust its administrative remedies. On or about June
25, 2014, plaintiff submitted a certified claim and request for a final decision to the GSA
contracting officer. Plaintiff sought to recover its settlement costs—the amount paid to Mrs.
4
AEGIS prepared a case summary reflecting that the insurer knew the nature of the case
and was updated on the proceedings. This case summary includes references to “we” when
discussing scheduling discovery and agreeing to settle, which could suggest that AEGIS
maintained an active role in the Eubank action. But, without more information, the court cannot
discern whether AEGIS controlled plaintiff’s defense in the Eubank action, what AEGIS’s
involvement was in that case, and whether AEGIS and plaintiff agreed on coverage.
5
A summary prepared by AEGIS reflects that plaintiff settled for $2.25 million and
incurred $1.76 million in legal expenses, but KCP&L only requested reimbursement of $3.01
million from AEGIS. The $1 million difference between the amounts suggests that plaintiff
covered some of the costs of the Eubank action. This understanding, although not explicitly
stated by the parties, is in accord with the insurance contract, see ECF No. 66-1 at 15 (explaining
that the insurance company is liable for amounts in excess of the underlying limits), and
plaintiff’s description of AEGIS as the excess insurer, see Excess Insurer, Black’s Law
Dictionary (9th ed. 2009) (“An agreement to indemnify against any loss that exceeds the amount
of coverage under another policy.”).
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Eubank and the related legal expenses. The contracting officer denied the claim on January 27,
2015.
B. Current Case
A few months after the contracting officer denied plaintiff’s claim, plaintiff initiated the
current lawsuit giving rise to defendant’s motion to compel. Plaintiff asserts two claims—
contractual indemnity and breach of contract—and seeks to recover the amount paid to settle the
Eubank action as well as related legal expenses. Since the beginning of this case, the discovery
process has been contentious; the parties have asked the court to intervene in multiple disputes
that the parties were unable to resolve themselves.
On November 1, 2016, defendant served on plaintiff a second set of discovery requests,
which included interrogatories and requests for production. Plaintiff provided its response on
December 13, 2016.6 In that response, plaintiff answered the relevant (1) interrogatories by
instructing defendant to see a previously produced factual synopsis of the Eubank action and
(2) requests for production by stating that there were no responsive documents or directing
defendant to documents produced with the synopsis. Plaintiff also stated specific objections7 to
some of the requests and incorporated the following general objections into each answer:
 Objection A: objecting to the time frame defendant set forth
for plaintiff to respond to the extent defendant sought to
impose time limits different than those imposed by the RCFC;
 Objection B: objecting to the discovery requests to the extent
they seek information protected by a prior stipulation order,
confidentiality order, protective order, or any other applicable
order; and
 Objection C: objecting to the discovery requests as overbroad
and unduly burdensome to the extent that defendant seeks
production of all documents.
After receiving plaintiff’s response, defendant sent a letter to plaintiff on January 6, 2017,
stating that KCP&L’s answers to the discovery requests were deficient. Defendant explained, in
detail, that plaintiff’s (1) answers failed to comply with the technical requirements of the RCFC,
6
The certificate of service attached to plaintiff’s response to the discovery requests
reflects that the response was served on December 13, 2016. But defendant’s January 6, 2017
letter to plaintiff states the response was provided on December 12, 2016.
7
The court uses the term “specific objection” to refer to any objection that is neither a
general objection nor an assertion of the attorney-client, settlement-communication, or work-
product privilege. Specific objections include, for example, that the requested information is
irrelevant or that the request is unduly burdensome.
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(2) general objections were inapplicable, and (3) specific objections to numerous requests were
also inadequate. Defendant then requested that plaintiff amend its response.8
Plaintiff served an amended response to defendant’s discovery requests on January 20,
2017. In the amended response, plaintiff repeated the same general and specific objections,
added new factual information in response to the interrogatories, and disclosed additional
documents responsive to the requests for production.
In an August 2, 2017 letter, defendant responded to plaintiff’s amended response by
explaining to plaintiff that its answers remained inadequate. First, defendant wrote that plaintiff
was improperly withholding responsive documents on the basis of the attorney-client or work-
product privilege. Defendant explained that plaintiff waived those privileges by (1) putting the
information at issue in this case and (2) exchanging the information with AEGIS. Even if the
privileges were not waived, defendant contended that plaintiff was required to disclose work
product because defendant has a substantial need for the documents and faces an undue hardship
in obtaining the materials through other means. Second, defendant explained that plaintiff’s
objections to Interrogatory No. 4 and Request for Production No. 10 remained inadequate for the
same reasons stated in defendant’s January 6, 2017 letter. Specifically, defendant reiterated that
the attorney-client and work-product privileges do not protect factual information, and the
parties’ equal access to information does not relieve plaintiff of the duty to respond to the
discovery requests.
The record contains no evidence that plaintiff responded to this letter. Indeed, plaintiff
appears to have rested on its January 20, 2017 amended response and subsequent privilege logs.
The portions of plaintiff’s amended response that defendant finds unsatisfactory, and the
corresponding discovery requests, cover five topics.9
1. Defense and Indemnification Conversations With the GSA
The first area of dispute concerns plaintiff’s tendering of the defense in the Eubank action
to the GSA and plaintiff’s requests to the GSA for indemnification of the expenses associated
with that case. Specifically, defendant asked, in Interrogatory No. 4, for plaintiff to identify “the
circumstances and communications related to KCP&L’s request or requests to the [GSA] for the
[GSA] to defend KCP&L in the Eubank litigation and/or indemnify KCP&L for expenses related
to the Eubank litigation, and the [GSA’s] response or responses thereto.” Def.’s Mot. App. 8.
8
Defendant addressed the specific objections plaintiff stated in response to Request for
Production Nos. 8-15, 17-20, and 22-24 as well as Interrogatory Nos. 2-8.
9
The parties initially briefed a dispute related to another issue—legal expenses
associated with the Eubank action—but the parties stated in their January 29, 2018 joint status
report that they anticipated being able to resolve the discovery issues associated with that
category of information. Although defendant noted in its supplemental reply brief that the
parties have yet to resolve that discovery, the court declines to wade into the issue until the
parties have clearly stated that they are at an impasse.
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In its amended response, plaintiff objected to the request by stating that the interrogatory
was unduly burdensome to the extent that the responsive information is equally accessible to
defendant. Plaintiff also objected to the extent that that interrogatory sought information
protected by the attorney-client or work-product privilege. Notwithstanding these objections,
plaintiff stated that it timely notified the GSA of the Eubank action and requested that the GSA
defend, indemnify, and hold harmless plaintiff for defense costs and potential liability
determinations. Plaintiff also explained that (1) the GSA refused to defend plaintiff after it
tendered the defense and (2) plaintiff again demanded indemnification from GSA on January 21,
2014.
2. Analysis of the Eubank Action Claims
The second area of dispute encompasses plaintiff’s analysis of the Eubank action and
specifically concerns Request for Production Nos. 19 and 20. In Request for Production No. 19,
defendant requested “[a]ll documents related to the analysis of litigation strategy related to the
Eubank litigation, the Eubank plaintiffs’ claims, and/or settlement of the Eubank litigation
conducted by” plaintiff, AEGIS, and/or their experts, consultants, or counsel. Id. at 12. In the
relevant portion of Request for Production No. 20, defendant asked for “[a]ll communications
between AEGIS (and its attorneys, consultants, and representatives) and KCP&L (and its
attorneys, consultants, and representatives) related to . . . litigation strategy in the Eubank
litigation, the Eubank plaintiffs’ claims, and/or settlement of the Eubank litigation.” Id. In its
amended response, plaintiff answered both requests by incorporating its general objections and
objecting to the requests because defendant sought “documents and/or communication[s]
covered by the attorney-client privilege or the work product [privilege].” Id. at 51-52. Plaintiff
did not produce any documents. Id.
Unsurprisingly, the new response did not satisfy defendant’s concerns. In a February 23,
2017 letter, defendant responded to plaintiff’s lack of production by stating that KCP&L
(1) failed to explain with specificity why the requests were unduly burdensome and (2) waived
the attorney-client and work-product privileges. Plaintiff replied in a March 3, 2017 letter to
defendant that KCP&L was withholding documents based on the attorney-client and work-
product privileges. Plaintiff identified the withheld documents in a March 3, 2017 privilege log
(“March 2017 Privilege Log”) included with the letter as well as in a May 22, 2017 privilege log
(“May 2017 Privilege Log”) later provided to defendant.10
Of particular importance to the pending motion, plaintiff identified in those privilege logs
a document authored by plaintiff’s counsel and sent to AEGIS’s counsel that is responsive to
Request for Production Nos. 19 and 20 (among others). Defendant states, and plaintiff does not
dispute, that this document shares the same characteristics as a previously produced electronic-
10
The two privilege logs are similar; in the May 2017 Privilege Log, plaintiff omitted
some entries that had appeared in the March 2017 Privilege Log, identified some new documents
that were being withheld, and amended the descriptions of some previously identified
documents.
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mail (“e-mail”) message.11 Specifically, defendant notes that the e-mail message and the
document identified on the privilege logs have the same date (January 5, 2010), author (Diana
Beckman), and recipient (Shannon Ali).12
3. Settlement Activities
The third area of dispute pertains to plaintiff’s settlement activities in the Eubank action
and specifically concerns Interrogatory No. 8 as well as Request for Production Nos. 14 and 18.
In Interrogatory No. 8, defendant asked plaintiff to “state in detail the circumstances surrounding
the settlement activities conducted and the settlement entered into to resolve the Eubank
plaintiffs’ claims in the Eubank litigation . . . .” Id. at 10. Associated with that interrogatory is
Request for Production No. 14, in which defendant requested “[a]ll documents relied upon to
answer Interrogatory No. 8.” Id. at 11. In its amended response to these discovery requests,
plaintiff incorporated its general objections and also objected on the basis that the interrogatory
was unduly burdensome, overly broad, and sought information that is neither relevant nor likely
to lead to the discovery of admissible evidence. Furthermore, plaintiff objected to the
interrogatory because defendant requested information that was disclosed in answers to previous
requests for admission. Plaintiff also asserted that the interrogatory sought information covered
by the attorney-client or work-product privilege. After stating these objections, plaintiff
(1) answered Interrogatory No. 8 by explaining that KCP&L reached a settlement with the
Eubank action claimants following mediation and (2) responded to Request for Production No.
14 by producing some documents.
As noted above, plaintiff served its amended response with a letter clarifying KCP&L’s
position regarding the discovery requests. In the relevant portion of the letter, plaintiff wrote that
it “withheld documents and information protected by the attorney client privilege in response to
Interrogatory No. 8 and Request for Production No. 14.” Id. at 59. In a February 23, 2017 letter,
defendant responded to both the amended response and the corresponding letter asking whether
plaintiff was withholding information based on objections other than privilege. In its letter,
defendant reiterated a point it previously made in response to plaintiff’s initial answer to
Interrogatory No. 8 and Request for Production No. 14: KCP&L waived the attorney-client and
work-product privileges by placing the reasonableness of the settlement and attorney’s fees at
issue. Plaintiff replied on March 3, 2017, that it was withholding information responsive to
Request for Production No. 14 based on the attorney-client or work-product privilege. On the
same day, plaintiff provided defendant with the March 2017 Privilege Log identifying a
responsive document, which was also identified in the May 2017 Privilege Log.
11
Plaintiff did not address the purported similarity despite defendant repeatedly stressing
the importance of the similarity. In this context (and for the purposes of this motion only), the
court treats plaintiff’s silence as agreement that the disclosed document is the same document as
the one identified on the privilege logs.
12
Although the disclosed e-mail message includes additional recipients in the carbon
copy line, the court cannot discern whether the privilege log’s recipient line is intended to show
any carbon copy line recipients. But, as discussed above, plaintiff’s silence on the issue is
telling. See supra note 11.
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In Request for Production No. 18, defendant requested “[a]ll documents and/or
communications related to the settlement in the Eubank litigation, including, but not limited to,
the settlement agreement.” Id. at 12. In response, plaintiff incorporated its general objections as
well as its specific objection that defendant sought documents protected by the attorney-client or
work-product privilege.
4. Reasonableness of the Settlement Decision
The fourth area of dispute encompasses defendant’s request for information related to
whether plaintiff made a reasonable decision to settle. This area specifically concerns
Interrogatory No. 3 and the related Request for Production No. 9. In Interrogatory No. 3,
defendant asks plaintiff to “state in detail all of the factual bases for KCP&L’s claims . . . that
‘KCP&L made a reasonable business decision to settle’ the Eubank matter ‘for $2,250,000.00’
. . . .” Id. at 8. In Request for Production No. 9, defendant asked for all documents plaintiff
relied on to answer Interrogatory No. 3. In its amended response, plaintiff objected on the basis
that Interrogatory No. 3 was unduly burdensome and contained six discrete interrogatories.
Nonetheless, plaintiff answered the relevant portion of Interrogatory No. 3 by stating that “[t]he
reasonable decision to settle the Eubank case was based upon the facts of the underlying case and
consideration of those facts in light of the law.” Id. at 35. Plaintiff also provided details on other
factors that it deemed relevant, including the mediation proceeding; contract between plaintiff
and the GSA; and facts, discovery, expert witnesses, and expert materials in the Eubank action.
Responding to Request for Production No. 9, plaintiff incorporated its general objections and
those objections lodged in response to Interrogatory No. 3. Plaintiff, however, produced some
documents.
Plaintiff fleshed out its answers to the above discovery requests in the letter sent to
defendant with plaintiff’s amended response. Plaintiff stated in the letter that it “will not include
any documents that are attorney work product or which contain attorney client privileged
information.” Id. at 58. Plaintiff continued: “As a result, documentation supporting [plaintiff’s]
reasonable business decision to settle the Eubank matter includes the factual basis for this
reasonable business decision, which necessarily includes all the facts of the underlying case.” Id.
In its February 23, 2017 letter to plaintiff, defendant responded that plaintiff waived any
privileges by putting the reasonableness of the settlement decision at issue in this case. Plaintiff
replied, in its March 3, 2017 letter, that it was continuing to withhold relevant information
covered by the attorney-client or work-product privilege, which is reflected in plaintiff’s March
2017 Privilege Log and May 2017 Privilege Log.
5. Post-Eubank Action Claims
The fifth area of dispute concerns the claims plaintiff submitted to the contracting officer
and this court after the conclusion of the Eubank action. Defendant seeks information regarding
these claims in Interrogatory No. 7 as well as Request for Production Nos. 13, 15, and 20. In
Interrogatory No. 7, defendant asked plaintiff to “[s]tate in detail all the circumstances
surrounding the preparation of plaintiff’s Claim” submitted to the contracting officer. Id. at 9.
Associated with this interrogatory is Request for Production No. 13, in which defendant
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requested “[a]ll documents relied upon to answer Integratory No. 7.” Id. at 11. Relatedly,
defendant used Request for Production No. 15 to request “[a]ll documents and/or
communications related to the preparation and submission . . . of the Claim” submitted to the
contracting officer. Id. Building on this request, defendant used the relevant part of Request for
Production No. 20 to ask plaintiff for “[a]ll communications” between AEGIS and plaintiff
“related to . . . [the claim] submitted by KCP&L to the contracting officer and the claims brought
before [this court] in Case No. 13-86C and Case No. 15-348C . . . .” Id. at 12.
Plaintiff listed a variety of objections to these requests in its amended response. In
response to Interrogatory No. 7, plaintiff incorporated its general objections and further objected
on the basis that the interrogatory sought information that is “neither relevant nor likely to lead to
the discovery of admissible evidence.” Id. at 45. Plaintiff then answered that its counsel and
representative prepared the claim submitted to the contracting officer and did not include details
regarding reimbursement because KCP&L’s contract with the GSA provided an unqualified right
to indemnification. Turning to Request for Production No. 13, plaintiff produced some
documents after incorporating its general objections as well as those objections noted in response
to Interrogatory No. 7. Plaintiff answered Request for Production No. 15 by incorporating its
general objections and disclosing some documents. Plaintiff then responded to the relevant part
of Request for Production No. 20 by incorporating its general objections and objecting on the
basis that the request sought documents protected by the attorney-client or work-product
privilege. Plaintiff did not produce any responsive documents.
Plaintiff expanded on its answers in the letter accompanying KCP&L’s amended
response. With regard to Request for Production No. 15, plaintiff said it was unable to
adequately respond until defendant tailored its requests. Plaintiff also stated in the letter that
defendant sought documents through Request for Production No. 20 that are protected by the
attorney-client or work-product privilege. In its February 23, 2017 letter, defendant stated that
plaintiff’s unduly burdensome objections to Request for Production Nos. 15 and 20 lack the
requisite specificity. Defendant also noted that it previously argued that plaintiff waived any
privileges by placing the contents of the documents at issue and that plaintiff did not address the
argument. In its March 3, 2017 letter to defendant, plaintiff explained that it was withholding
responsive documents to Request for Production Nos. 13, 15, and 20 based on the attorney-client
or work-product privilege.13 On the privilege log included with the letter, plaintiff identified the
withheld documents.
II. LEGAL STANDARDS
It is “axiomatic that a trial court has broad discretion to fashion discovery orders . . . .”
White Mountain Apache Tribe of Ariz. v. United States, 4 Cl. Ct. 575, 583 (1984); see also
Schism v. United States, 316 F.3d 1259, 1300 (Fed. Cir. 2002) (“A trial court ‘has wide
discretion in setting the limits of discovery.’” (quoting Moore v. Armour Pharm. Co., 927 F.2d
1194, 1197 (11th Cir. 1991))); Florsheim Shoe Co., Div. of Interco, Inc. v. United States, 744
13
By stating that privileged documents responsive to Request for Production No. 13
were being withheld, plaintiff also suggested for the first time that it was withholding
information on the same basis from the related interrogatory—Interrogatory No. 7.
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F.2d 787, 797 (Fed. Cir. 1984) (“Questions of the scope and conduct of discovery are, of course,
committed to the discretion of the trial court.”). Although discovery rules “are to be accorded a
broad and liberal treatment,” Hickman v. Taylor, 329 U.S. 495, 507 (1947), the court must, “[i]n
deciding either to compel or quash discovery, . . . balance potentially conflicting goals,”
Evergreen Trading, LLC ex rel. Nussdorf v. United States, 80 Fed. Cl. 122, 126 (2007). Thus,
“discovery, like all matters of procedure, has ultimate and necessary boundaries.” Hickman, 329
U.S. at 507.
A. Scope of Discovery
RCFC 26(b)(1), which is identical to Rule 26(b)(1) of the Federal Rules of Civil
Procedure (“FRCP”),14 is the general provision governing the scope of discovery in the United
States Court of Federal Claims. Sparton Corp. v. United States, 77 Fed. Cl. 10, 21 n.14 (2007).
The scope of discovery is broad. Int’l Paper Co. v. United States, 36 Fed. Cl. 313, 317 (1996);
accord FRCP 26(b) advisory committee’s note to 1946 amendment (“The purpose of discovery is
to allow a broad search for facts . . . or any other matters which may aid a party in the
preparation of presentation of his case.”). The range of permissible discovery includes more than
just evidence that would be admissible at trial; parties may obtain “discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” RCFC 26(b)(1).
But a party’s ability to obtain pretrial discovery is not unrestrained. The court may limit
a discovery request that is unduly burdensome—i.e., the “burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.” RCFC 26(b)(2)(C)(iii). Under RCFC 26,
the parties also may limit the scope of discovery by withholding otherwise discoverable
information by claiming that it is protected by the attorney-client or work-product privilege.
RCFC 26(b)(5)(A). Pursuant to that rule, however, the party withholding information on the
basis of the attorney-client or work-product privilege must “(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.” Id. In other words, “the description of
each document and its contents must be sufficiently detailed to allow the court to determine
whether the elements” of the claimed privileges “have been established.” Deseret Mgmt. Corp.
v. United States, 76 Fed. Cl. 88, 91 (2007) (quoting SmithKline Beecham Corp. v. Apotex Corp.,
232 F.R.D. 467, 475 (E.D. Pa. 2005)); accord FRCP 26(b) advisory committee’s note to 1993
amendment (“The party must . . . provide sufficient information to enable other parties to
evaluate the applicability of the claimed privilege or protection.”).
14
“[T]o the extent practicable,” the RCFC conform to the FRCP. RCFC rules
committee’s note to 2008 amendment. Thus, “interpretation of the court’s rules will be guided
by case law and the Advisory Committee Notes that accompany the [FRCP].” RCFC rules
committee’s note to 2002 amendment; accord Zoltek Corp. v. United States, 71 Fed. Cl. 160, 167
(2006).
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1. Attorney-Client Privilege
The purpose of the attorney-client 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 Co. v. United States, 449 U.S.
383, 389 (1981). Thus, the privilege “protects the confidentiality of communications between
attorney and client made for the purpose of obtaining legal advice.” Genentech, Inc. v. U.S. Int’l
Trade Comm’n, 122 F.3d 1409, 1415 (Fed. Cir. 1997). This privilege extends only to
communications and not to any underlying factual information in those communications.
Upjohn Co., 449 U.S. at 389. Furthermore, information “does not become privileged simply
because it came from counsel”; indeed, “when documents or conversations are created pursuant
to business matters, they must be disclosed.” Energy Capital Corp. v. United States, 45 Fed. Cl.
481, 484 (2000).
Because “the privilege has the effect of withholding relevant information from the fact
finder, [the privilege] applies only where necessary to achieve its purpose.” Fisher v. United
States, 425 U.S. 391, 403 (1976); see also Energy Capital Corp., 45 Fed. Cl. at 484 (“The
assertion of privileges is strictly construed.”). Consequently, the assertion of attorney-client
privilege is only proper when:
(1) the asserted holder of the privilege is or sought to become a
client; (2) the person to whom the communication was made (a) is
a member of the bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing a crime or
tort; and (4) the privilege has been (a) claimed and (b) not waived
by the client.
Energy Capital Corp., 45 Fed. Cl. at 484-85 (quoting United States v. United Shoe Mach. Corp.,
89 F. Supp. 357, 358-59 (D. Mass. 1950)). The party asserting the privilege bears the burden of
demonstrating the applicability of the privilege, and that burden is not “discharged by mere
conclusory or ipse dixit assertions.” Evergreen Trading, 80 Fed. Cl. at 127 (quoting In re
Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)); see also In re Grand Jury Investigation No. 83-2-
35, 723 F.2d 447, 450-51 (6th Cir. 1983) (reviewing decisions from various appellate courts on
which party bears the burden).
Even if the privilege would otherwise be applicable, the party holding the privilege may
waive it with regard to specific information. In re Seagate Tech., LLC, 497 F.3d 1360, 1372
(Fed. Cir. 2007) (en banc). Given this possibility, “the party who invokes the privilege bears the
burden of establishing that . . . it has not been waived” via an implied or express waiver. In re
Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st
Cir. 2003); accord Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir.
-11-
1981) (“One of the elements that the asserting party must prove is that it has not waived the
privilege.”). Waiver can be accomplished in several ways. For example, a party may implicitly
waive the privilege if the communication is necessary to establish its claim. Blue Lake Forest
Prods., Inc. v. United States, 75 Fed. Cl. 779, 783 (2007). This waiver is commonly known as
the “at-issue waiver” or “at-issue implied waiver.” See, e.g., id. at 783-84 (using both terms). In
addition, an intentional waiver can be implied from a party’s failure to seek the return of
privileged documents that were previously produced. Oasis Int’l Waters, Inc. v. United States,
110 Fed. Cl. 87, 116 (2013); see also Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1350
(Fed. Cir. 2005) (“A party’s failure to protect its privilege can result in a loss of that privilege”).
Further, “[a] client may expressly waive the privilege with respect to a confidential
communication by disclosing the communication to a third party.” Eden Isle Marina, Inc. v.
United States, 89 Fed. Cl. 480, 501 (2009).
“If a court determines that a party has waived the privilege with respect to a particular
communication, that waiver generally extends to all communications ‘relating to the same
subject matter.’” Oasis Int’l Waters, 110 Fed. Cl. at 109 (quoting Fort James Corp., 412 F.3d at
1349). This rule “is grounded in principles of fairness,” In re Seagate Tech., 497 F.3d at 1372,
which helps explain why the contours of a subject matter waiver depend on the circumstances
giving rise to the original waiver, see Oasis Int’l Waters, 110 Fed. Cl. at 109.
If the waiver-inducing disclosure is made during a federal proceeding (or to a federal
office or agency), then the waiver extends to undisclosed information if “(1) the waiver is
intentional; (2) the disclosed and undisclosed communications or information concern the same
subject matter; and (3) they ought in fairness be considered together.” Fed. R. Evid. 502(a).
First, as noted above, intentional waivers can be express or implied. See Oasis Int’l Waters, 110
Fed. Cl. at 109; Eden Isle Marina, 89 Fed. Cl. at 501; see also Fort James, 412 F.3d at 1350.
Second, as to determining subject matter, “[t]here is no bright line test for determining what
constitutes the subject matter of a waiver, rather courts weigh the circumstances of the
disclosure, the nature of the legal advice sought and the prejudice to the parties of permitting or
prohibiting further disclosures.” Fort James, 412 F.3d at 1349. Third, the fairness inquiry
requires a consideration of whether “further disclosure of related, protected information” is
necessary “to prevent a selective and misleading presentation of evidence to the disadvantage of
the adversary.” Fed. R. Evid. 502(a) advisory committee’s note (2007); see also In re EchoStar
Commc’ns Corp., 448 F.3d 1294, 1303 (Fed. Cir. 2006) (noting that the “overarching goal” of
subject matter waiver is “to prevent a party from using the advice he received as both a sword,
by waiving privilege to favorable advice, and a shield, by asserting privilege to unfavorable
advice”).
If the waiver-inducing disclosure is not made to a federal office or agency, “it is
unresolved whether ‘Rule 502(a) [of the Federal Rules of Evidence (“FRE”)] governs the scope
of waiver resulting from . . . pre litigation disclosure.’” Oasis Int’l Waters, 110 Fed. Cl. at 109
(alteration in original) (quoting Wi-LAN v. Kilpatrick Townsend & Stockton LLP, 684 F.3d
1364, 1369 (Fed. Cir. 2012)); see also Fed. R. Evid. 502(a) (explaining the rule applies “when
the disclosure is made in a federal proceeding or to a federal office or agency”). In
circumstances not explicitly contemplated by FRE 502(a), the weight of authority suggests that
the scope of subject matter waivers are premised on fairness considerations akin to those
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required by the evidentiary rule. Oasis Int’l Waters, 110 Fed. Cl. at 115; see also Wi-LAN, 684
F.3d at 1373 (predicting that another appellate court would appreciate “the heavy weight of
current authority that comes down on the side of employing fairness considerations to decide the
scope of waivers”).
2. Work-Product Privilege
In contrast with the attorney-client privilege, the work-product privilege protects against
the discovery of documents “prepared in anticipation of litigation or for trial by or for another
party or its representative (including the other party’s attorney, consultant, . . . or agent).” RCFC
26(b)(3)(A); see also Upjohn Co., 449 U.S. at 398 (“Rule 26(b)(3) codifies the work-product
privilege . . . .”). Specifically, the privilege “shelters the mental processes of the attorney,
providing a privileged area within which he can analyze and prepare his client’s case.” Nobles,
422 U.S. at 238. By “protecting ‘the attorney’s thought processes and legal recommendations’
from the prying eyes of his or her opponent,” the privilege “promotes a fair and efficient
adversarial system . . . .” In re EchoStar Commc’ns Corp., 448 F.3d at 1301 (quoting Genentech,
122 F.3d at 1415). Given these constraints, the work-product privilege does not protect
“[m]aterials assembled in the ordinary course of business, or pursuant to public requirements
unrelated to litigation, or for other nonlitigation purposes . . . .” FRCP 26(b)(3) advisory
committee note to the 1970 amendment. As with the attorney-client privilege, the party asserting
the work-product privilege bears the burden of demonstrating that the privilege applies and was
not waived, Evergreen Trading, 80 Fed. Cl. at 127, and must do so by setting forth objective
facts supporting the claim rather than mere conclusory statements, AAB Joint Venture v. United
States, 75 Fed. Cl. 448, 455 (2007).
The fact that documents may have been created in anticipation of litigation or for trial
does not always create an impenetrable barrier for another party seeking to obtain the materials
through discovery. A party can waive the work-product privilege either expressly or implicitly
in generally the same manner that a party can waive the attorney-client privilege. See Eden Isle
Marina, 89 Fed. Cl. at 503-04. As with the attorney-client privilege, a party who discloses work-
product documents risks a subject matter waiver. In re EchoStar Commc’ns Corp., 448 F.3d at
1302; see also FRE 502(a). The court, however, must “pay close attention to the special
protection afforded [to] opinion work product” before recognizing the scope of a subject matter
waiver as encompassing such work product. Eden Isle Marina, 89 Fed. Cl. at 505. Even if there
is no waiver, documents that would otherwise be protected by the work-product privilege are
discoverable in limited circumstances. Specifically, documents prepared in anticipation of
litigation may be discovered if the requesting party “shows that it has substantial need for the
materials to prepare its case and cannot, without undue hardship, obtain their substantial
equivalent by other means.” RCFC 26(b)(3)(A). The degree of need and hardship that a party
must show, however,
depends on whether the work product is factual, or the result of
mental processes such as plans, strategies, tactics, and impressions,
whether memorialized in writing or not. Whereas factual work
product can be discovered solely upon a showing of substantial
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need and undue hardship, mental process work product is afforded
even greater, nearly absolute, protection.
In re Seagate Tech., 497 F.3d at 1375; accord RCFC 26(b)(3)(B) (“If the court orders discovery
of those materials, it must protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other representative concerning the
litigation.”).
3. Joint-Defense Privilege and Common-Interest Rule
Also at issue in this case is a concept referred to as both the joint-defense privilege and
the common-interest rule. The joint-defense privilege and common-interest rule are different
names for the same concept.15 See, e.g., In re SoftWire Technology, LLC, 135 F. App’x 422,
422 n.* (Fed. Cir. 2005) (“The joint defense privilege is also known as the common interest
privilege”); In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir. 2001) (similar). The court
will use the term “common-interest rule” because it is more accurate. See In re Grand Jury
Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir. 1990) (explaining that
the “common-interest rule” is a more accurate term because courts have expanded the joint-
defense privilege beyond codefendants); accord United States v. Schwimmer, 892 F.2d 237, 243
(2d Cir. 1989) (“The joint defense privilege . . . [is] more properly identified as the ‘common
interest rule’ . . . .”).
The common-interest rule is “designed to allow attorneys for different clients pursuing a
common legal strategy to communicate with each other” without making shared information
discoverable. In re Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012). Specifically, the
rule is an exception to the principle that a party waives the attorney-client or work-product
privilege by sharing the protected information with a third party. John Doe 89-129, 902 F.2d at
249. The “rule presupposes the existence of an otherwise valid” assertion of privilege. Id.; see
also In re Pac. Pictures Corp., 679 F.3d at 1129 (noting that the rule is not a separate privilege).
To preclude a waiver of those privileges, the common-interest rule requires that (1) the parties
who exchanged information did so in the context of a joint effort regarding a common interest
and (2) the exchange was made in furtherance of that interest. Schwimmer, 892 F.2d at 243;
accord United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007).
With regard to first prong of the rule, “[t]he key consideration is that the nature of the
interest be identical, not similar, and be legal, not solely commercial.” B.E. Meyers & Co., Inc.,
41 Fed. Cl. at 732 (quoting Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1172
(D.S.C. 1974)); accord Lugosch v. Congel, 219 F.R.D. 220, 238 (N.D.N.Y. 2003) (“The
common enterprise must be for a legal purpose, and not solely commercial, although it may
15
The correct terminology is a matter of dispute. See, e.g., JTR Enters., LLC v. An
Unknown Quantity of Colombian Emeralds, Amethysts & Quartz Crystals, 297 F.R.D. 522, 528
(S.D. Fla. 2013) (using the terms “joint-defense doctrine” and “common-interest privilege”);
B.E. Meyers & Co. v. United States, 41 Fed. Cl. 729, 732 & n.4 (1998) (noting that courts
interchangeably use the terms “joint-defense doctrine,” “common-interest doctrine,” and
“community-of-interest doctrine”).
-14-
possibly serve both purposes.”). Although a shared legal interest satisfies the first prong, it is not
sufficient for the second; to satisfy the second prong of the rule, “the parties must make the
communication in pursuit of a joint strategy in accordance with some form of agreement—
whether written or unwritten.” In re Pac. Pictures Corp., 679 F.3d at 1129; accord Shamis v.
Ambassador Factors Corp., 34 F. Supp. 2d 879, 893 (S.D.N.Y. 1999) (“Sharing a desire to
succeed in an action is not enough to create a common interest . . . .”). Indeed, a shared desire to
prevail in a case “is not enough to create a common interest where there was no evidence of an
agreement, the third-party was never party to the action, and the third-party never exercised
control over or contributed to legal expenses.” JTR Enters., LLC, 297 F.R.D. at 528.
B. Methods of Discovery
In addition to the various standards governing the scope of discovery, this case involves
two methods of discovery: interrogatories and requests for production. RCFC 33 governs
interrogatories. “An interrogatory may relate to any matter that may be inquired into under
RCFC 26(b).” RCFC 33(a)(2). After being served with interrogatories, the responding party has
thirty days to submit its answers and any objections. RCFC 33(b)(2). If the responding party
objects to an interrogatory, the “grounds for objecting . . . must be stated with specificity” and
“[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses
the failure.” RCFC 33(b)(3)-(4).
The production of documents is governed by RCFC 34. Subject to the limits of
permissible discovery set forth in RCFC 26(b), a party may serve on another party a request “to
produce and permit the requesting party to inspect . . . any designated documents or
electronically stored information . . . .” RCFC 34(a)(1). The party to whom the request is
directed “must respond in writing within 30 days after being served,” but “[a] shorter or longer
time may be stipulated to under RCFC 29 or be ordered by the court.” RCFC 34(b)(2)(A). Each
response “must either state that inspection and related activities will be permitted as requested or
state an objection to the request, including the reasons.” RCFC 34(b)(2)(B). If a responding
party objects, the “objection must state whether any responsive materials are being withheld on
the basis of that objection.” RCFC 34(b)(2)(C). The failure to make a proper objection to a
document production request may result in the waiver of that objection. See Marx v. Kelly, Hart
& Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991) (“If the responding party fails to make a timely
objection, or fails to state the reason for an objection, he may be held to have waived any or all
of his objections.”).
C. Motion to Compel
When a party is dissatisfied with the responses to its discovery requests, the party may
seek an order from the court compelling a more satisfactory response. Specifically, under RCFC
37, when a party fails to fulfill its discovery obligations, the “party seeking discovery may move
for an order compelling an answer, designation, production, or inspection.” RCFC 37(a)(3)(B).
A motion to compel is appropriate when a party “fails to answer an interrogatory under RCFC
-15-
33” or “fails to respond that inspection will be permitted—or fails to permit inspection—as
requested under RCFC 34.” RCFC 37(a)(3)(B).
“In order to succeed on a motion to compel discovery, a party must first prove that it
sought discovery from its opponent.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1310
(3d Cir. 1995). Additionally, an RCFC 37 motion “must include a certification that the movant
has in good faith conferred or attempted to confer” with the nondisclosing party regarding the
discovery request. RCFC 37(a)(1). Similar to its FRCP counterpart, RCFC 37 “does not set
forth what must be included in the moving party’s certification except to indicate that the
document must declare that the movant has ‘in good faith conferred or attempted to confer’ . . . .”
Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). “[G]ood
faith cannot be shown merely through the perfunctory parroting of statutory language on the
certificate to secure court intervention; rather it mandates a genuine attempt to resolve the
discovery dispute through non judicial means.” Id. Conferment, in turn, requires that the
“moving party must personally engage in two-way communication with the nonresponding party
to meaningfully discuss each contested discovery dispute in a genuine effort to avoid judicial
intervention.” Id.
After resolving a motion to compel, RCFC 37 contemplates the court ordering the
payment of expenses incurred as a result of the motion and issuing a protective order when
warranted. See RCFC 37(a)(5). If the court grants the motion (or the requested discovery is
provided after the motion is filed), then the court must require the responding party to pay the
moving party’s reasonable expenses (including attorney’s fees) incurred in making the motion.
RCFC 37(a)(5)(A). But such an award is not appropriate if:
(i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Id. If the court denies the motion, however, the court (1) may issue a protective order and
(2) must require the moving party to pay the responding party’s reasonable expenses incurred in
opposing the motion unless “the motion was substantially justified or other circumstances make
an award of expenses unjust.” RCFC 37(a)(5)(B). Finally, if the court grants in part and denies
in part the motion, then the court may issue a protective order and apportion reasonable expenses
for the motion. RCFC 37(a)(5)(C).
III. ANALYSIS
After requesting discovery from plaintiff and then making a good-faith effort to obtain
satisfactory responses, defendant filed the instant motion to compel. Specifically, defendant
moves to compel plaintiff’s responses to various discovery requests that were answered with
general objections; specific objections; and assertions of the attorney-client, settlement-
-16-
communication, and work-product privileges. Defendant argues that (1) the general and specific
objections are insufficient to warrant withholding information; and (2) the asserted privileges do
not apply, were implicitly waived, or were expressly waived. In addition, assuming its motion is
granted, defendant seeks an adverse inference if plaintiff declines to supplement its discovery
responses.
A. General and Specific Objections
Turning to the information that defendant knows was withheld due to entries on the
privilege log, the court begins by analyzing plaintiff’s general and specific objections to the
discovery requests because the validity of these objections would render moot any dispute over
assertions of privilege. These objections can be sustained only if they are stated with specificity
and tailored to the disputed discovery requests. RCFC 33(b)(4); RCFC 34(b)(2)(B). The use of
broad or boilerplate objections is insufficient to justify withholding information. Cf. Lakeland
Partners, L.L.C. v. United States, 88 Fed. Cl. 124, 133 (2009) (“[B]road allegations of harm,
unsubstantiated by specific examples, are insufficient to justify issuance of a protective order.”).
The court will not sustain plaintiff’s general objections because they consist of broad,
boilerplate language relatively untethered to the facts of the case. Objection A is overruled
because plaintiff fails to show that defendant’s discovery requests include obligations or
deadlines for responding that conflict with those set forth in the RCFC. Similarly, objection B is
overruled because plaintiff fails to demonstrate the existence of an order or agreement limiting
discovery. As with the previous two objections, objection C appears to be boilerplate language,
albeit slightly more germane to the discovery responses in this case given that defendant actually
requests “all” documents in certain instances. Nonetheless, objection C is overruled because
plaintiff fails to demonstrate that a request for “all” documents pertaining to specific information
in a relatively narrowly tailored time frame is overly broad or unduly burdensome.16 The
decision to overrule these general objections is reinforced by plaintiff’s failure to respond to
defendant’s arguments regarding the general objections despite bearing the burden of showing
that the objections are meritorious. See Cardiosom, LLC v. United States, 91 Fed. Cl. 659, 664
(2010) (noting that when a plaintiff fails to respond to an argument, the plaintiff “has effectively
conceded the issue”); Ravens Grp., Inc. v. United States, 79 Fed. Cl. 100, 110 (2007) (similar).
Although slightly more tailored and composed with slightly less boilerplate language,
plaintiff’s specific objections to the discovery requests at issue also do not justify withholding
information. Similar to the general objections, defendant makes colorable arguments regarding
why these specific objections are inadequate, and plaintiff has not responded to the arguments.
The court is inclined to agree with defendant’s position given plaintiff’s lack of specificity. A
16
The requests for production in which defendant asks for “all” documents appear
especially appropriate in this case given that the requests at issue are tailored to discrete
categories of information that would not be meaningfully addressed by a sampling of responsive
documents. Anything less than a request for “all” documents would invite plaintiff to selectively
disclose information while technically complying with the discovery request.
-17-
more expansive critique of the merits of each objection is not warranted given that plaintiff
abandons the specific objections in its briefing. See Cardiosom, 91 Fed. Cl. at 664. Therefore,
the court overrules plaintiff’s specific objections to the discovery requests addressed in
defendant’s motion. Accordingly, plaintiff’s right to withhold information responsive to
defendant’s discovery requests turns on the viability of the claimed privileges.
B. Privilege Logs
As an initial matter, defendant expresses concern that plaintiff’s privilege logs reflect
only some of the documents being withheld based on assertions of privileges. This belief has
merit given plaintiff’s admission that it was not listing all responsive documents on its privilege
logs, see Pl.’s Supp. Resp. 3 (suggesting that plaintiff did not identify documents if other
objections were applicable), argues that there is no obligation to do so, id. at 2-3, and identified
only one document sent to AEGIS during the Eubank action despite other records suggesting
ongoing communications during that time,17 compare Def.’s Reply App. 2-3 (noting
communication between plaintiff and AEGIS), with Def.’s Mot. App. 91-93 (noting one
privileged document reflecting communication between plaintiff and AEGIS during the Eubank
action). Because plaintiff’s nonprivilege objections were not sustained, plaintiff is obligated to
identify any materials being withheld on the basis of privilege. See RCFC 26(b)(5)(A)
(requiring a party identify information that is being withheld on the basis of privilege when the
materials are otherwise discoverable). In light of the information before the court, plaintiff is
ordered to either (1) supplement its privilege logs with any withheld documents responsive to
defendant’s second set of discovery requests or (2) provide defendant with a sworn statement
averring that the most recent privilege log reflects plaintiff’s good-faith effort to identify all such
documents.
C. Applicability of the Work-Product Privilege and the Attorney-Client Privilege
The first step in ascertaining the viability of the privileges asserted by plaintiff is
determining whether the privileges apply to the designated documents in the first instance.
Defendant challenges plaintiff’s assertion of privilege in three respects.
1. Work Product Created After the Eubank Action
Defendant first argues that the work-product privilege does not allow plaintiff to avoid
substantively responding to discovery requests related to events that occurred after the Eubank
action. Specifically, defendant contends that the privilege is inapplicable because plaintiff has
not established that, after the conclusion of the Eubank action, “there was a ‘substantial
probability that litigation will occur and that commencement of such litigation is imminent.’”
Def.’s Mot. 34 (quoting Home Ins. Co. v. Ballenger Corp., 74 F.R.D. 93, 101 (N.D. Ga. 1977)).
Defendant’s argument rests on the fact that plaintiff waited for more than two years after the
conclusion of the Eubank action to sue the government.
17
The paucity of records identified as privileged takes on increased significance because
plaintiff asserts that it was communicating with AEGIS regarding legal strategy, which suggests
that plaintiff might possess additional potentially privileged documents.
-18-
The work-product privilege, as explained above, protects documents that are “prepared in
anticipation of litigation . . . .” RCFC 26(b)(3)(A). Relying on nonbinding precedent from
outside the court’s jurisdiction, defendant urges a narrow reading of what it means to be prepared
in anticipation of litigation: a substantial probability of imminent litigation. But such a reading
is not in accord with the standard used by this court. See Evergreen Trading, 80 Fed. Cl. at 132
(“[I]t is well-recognized that for the [work-product privilege] to apply, litigation need not . . . be
imminent . . . .” (second alteration in original)). Under this standard, documents are created in
anticipation of litigation when (1) the litigation was “a real possibility at the time the documents
in question [were] prepared” and (2) a “given document was prepared or obtained ‘because of’
[that possibility].” Id. (collecting cases).
Applying that standard, the application of the work-product privilege to prelitigation
documents is not foreclosed by the delay between the conclusion of the Eubank action and the
current case. Plaintiff faced a real possibility of litigation regarding the government’s purported
indemnification obligation from the moment the GSA declined to pay the settlement costs in the
Eubank action (if not earlier, such as when the government purportedly declined to defend
plaintiff in the case). Once the GSA did not fulfill its purported obligation under the indemnity
agreement, plaintiff was aware that it would have to file suit against the government to enforce
its rights, and the entries on the relevant privilege logs reflect that the documents were shared
because plaintiff anticipated pursuing such litigation. E.g., Def.’s Mot. App. 92 (describing
subject matter of document as “communication related to pursuing anticipated litigation”).
2. Work Product and Factual Information
Next, based on plaintiff’s assertion of the work-product privilege in response to
Interrogatory Nos. 4 and 8, defendant speculates that plaintiff improperly withheld responsive
factual information. Defendant argues that the court should compel plaintiff to provide any
withheld facts because the work-product privilege does not shield facts from disclosure in
response to discovery requests. Plaintiff does not directly respond to this argument.
Defendant is correct that the work-product privilege “does not protect facts contained
within or underlying attorney work product.”18 AAB Joint Venture, 75 Fed. Cl. at 454. With
regard to Interrogatory No. 4, plaintiff omitted relevant factual information concerning
KCP&L’s overtures to the GSA tendering the defense or requesting indemnification. For
example, plaintiff answered that it twice contacted the GSA regarding indemnification but did
not include details regarding how the requests were made or, for the first request, when it was
made.19 That information is relevant because verifying the tender might change the standard for
18
Defendant notes that it has asked plaintiff if it entered into a confidentiality agreement
governing the mediation proceeding and asserts that plaintiff has not responded to that inquiry.
19
In relevant part, plaintiff stated: “KCP&L timely notified the [GSA] of the [Eubank
action]. KCP&L requested that the [GSA] defend, indemnify, and hold KCP&L harmless for
defense costs and potential liability determination . . . . On January 21, 2014, KCP&L again
demanded indemnification from the [GSA].” Def.’s Mot. App. 43.
-19-
evaluating plaintiff’s settlement. See Weissman v. Boating Magazine, 946 F.2d 811, 813 (11th
Cir. 1991). Furthermore, the withheld facts are not privileged because the details concern
exchanges that are unrelated to obtaining legal advice. Genentech, Inc., 122 F.3d at 1415.
Although the court is currently ill-positioned to precisely define the scope of facts that must be
disclosed given the preliminary state of proceedings and defendant’s failure to state what
information may be missing, the record is clear that responsive facts have been improperly
withheld. Plaintiff is ordered to supplement its response to Interrogatory No. 4 with additional
facts by working with defendant to determine what information is being sought. See RCFC
26(b)(5)(A); see also White Mountain Apache Tribe of Ariz., 4 Cl. Ct. at 583 (noting that courts
hold broad discretion to fashion discovery orders).
As to Interrogatory No. 8, plaintiff improperly withheld relevant factual information.
Defendant requested that plaintiff explain the circumstances surrounding the settlement
activities, but the relevant portion of plaintiff’s answer lacks any such details. Plaintiff merely
answered that it engaged in mediation proceedings and later reached a settlement. At the very
least, this answer lacks facts regarding what occurred during the mediation or settlement
discussions such as the parties’ positions or offers. Such facts, in addition to not being protected
by the work-product privilege, are not shielded by the attorney-client privilege because any
details shared between the parties during the mediation or settlement discussions were not made
for the purposes of securing legal advice. Additionally, the information is relevant because the
Eubank action parties’ positions and conversations provide context for evaluating whether
plaintiff’s decision to settle was reasonable and whether plaintiff’s attorneys were pursuing
justifiable lines of inquiry. Therefore, as with Interrogatory No. 4, plaintiff is ordered to
supplement its response with any relevant, missing facts and should do so by working with
defendant to identify what information is being sought.
3. Attorney-Client Privilege and Attorney’s Fees
Finally, defendant argues that plaintiff improperly withheld documents regarding
attorney’s fees in the Eubank action on the basis of attorney-client privilege. Specifically,
defendant contends that plaintiff’s assertion of the attorney-client privilege for
“communication[s] regarding fees” should be overruled because that privilege does not protect
information concerning attorney’s fees. Plaintiff does not respond to this argument.20
The attorney-client privilege does not apply to general information regarding an
attorney’s representation of a client. See Avgoustis v. Shinseki, 639 F.3d 1340, 1344-5 (Fed.
Cir. 2011). For example, “the identity of the client, the amount of the fee, the identification of
payment by case file name, and the general purpose of the work performed are usually not
protected from disclosure by the attorney-client privilege.” Id. (quoting In re Grand Jury
Subpoena, 204 F.3d 516, 520 (4th Cir. 2000)). The attorney-client privilege does not attach to
20
Plaintiff discusses the requests for production to which the withheld documents are
responsive but does so only in the context of arguing that there is no at-issue waiver.
Defendant’s argument here, however, is not concerned with whether there is a waiver; instead,
defendant focuses on whether the attorney-client privilege applies to the documents in the first
instance.
-20-
such information because it “ordinarily reveals no confidential professional communications
between attorney and client . . . .” In re Grand Jury Matter, 926 F.2d 348, 352 (4th Cir. 1991)
(quoting In re Osterhoudt, 722 F.2d 591, 593 (9th Cir. 1983)). “Absent special circumstances,
disclosure of the identity of the client and fee information stand on a footing different from
communications intended by the client to explain a problem to a lawyer in order to obtain legal
advice.” In re Shargel, 742 F.2d 61, 63 (2d Cir. 1984).
Here, plaintiff asserted the attorney-client privilege to support withholding two
documents and justified that assertion in its May 2017 Privilege Log on the basis that the
documents are “[a]ttorney-client communication[s] regarding fees in the Eubank v. KCPL
case.”21 Def.’s Mot. App. 92. In its briefing, plaintiff failed to provide any further explanation
for its assertion of the attorney-client privilege. Plaintiff’s vague explanation in its privilege log
does not suggest that the withheld documents relate to anything other than a discussion of the fee
amount or general purpose of the work performed by plaintiff’s counsel in the Eubank action.
There is no indication that the communications were related to obtaining legal advice. Thus,
plaintiff fails to demonstrate that the withheld documents are covered by the attorney-client
privilege. See Evergreen Trading, 80 Fed. Cl. at 127 (placing burden on party asserting
privilege). Accordingly, plaintiff’s privilege objection is overruled, and plaintiff is ordered to
provide defendant with documents 13 and 14 in the May 2017 Privilege Log.
Having resolved defendant’s contention that plaintiff improperly invoked the attorney-
client and work-product privileges with respect to certain discovery requests, the court turns to
defendant’s contention that plaintiff impliedly waived any applicable privileges.
D. Implied Waiver: Eubank Action Analysis and Settlement
The parties disagree on whether the nature of plaintiff’s claims caused a waiver of
otherwise applicable privileges. Pursuant to what is commonly known as an “at-issue waiver,” a
party implicitly waives the attorney-client or work-product privilege if the protected information
is critical to evaluating a claim. Eden Isle Marina, 89 Fed. Cl. at 502. Specifically, the waiver
applies when:
(1) [the] assertion of the privilege was a result of some affirmative
act, such as filing suit, by the asserting party; (2) through this
affirmative act, the asserting party put the protected information at
issue by making it relevant to the case; and (3) [the] application of
the privilege would have denied the opposing party access to
information vital to [its] defense.
Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975); see also Eden Isle Marina, 89 Fed. Cl. at
503 (adopting the Hearn test after noting the absence of controlling precedent).
Relying on Hearn, defendant argues that plaintiff’s assertion of an indemnification claim
waived any privileges that would otherwise be applicable to plaintiff’s analysis and settlement of
21
Plaintiff also asserted privilege over the two documents (and provided the same
justification) in the March 2017 Privilege Log.
-21-
the Eubank action. Specifically, defendant asserts that plaintiff placed at issue its litigation
strategy, legal expenses, and settlement decision because plaintiff’s claim is premised on the
theory that (1) its decision to settle the Eubank action was reasonable and (2) its costs incurred as
a result of that settlement were also reasonable. Contending that there is an at-issue waiver,
defendant moves to compel plaintiff to supplement its answers to various discovery requests on
those issues.22 Even if there is no at-issue waiver, defendant argues that it has a substantial need
for the work-product information on the issues noted above for the same reasons that the
information is vital: it is necessary to evaluate reasonableness. Therefore, defendant contends
that a motion to compel the disclosure of work product is warranted regardless of whether there
is an at-issue waiver.
Unsurprisingly, plaintiff disagrees. First, plaintiff argues that seeking indemnification for
the settlement amount does not result in an at-issue waiver because, under the terms of the
contract, the reasonableness of the settlement is not relevant. Even if the contract was construed
to require reasonableness, plaintiff asserts that its attorney’s thoughts are irrelevant because the
inquiry focuses on whether the settlement was reasonable in light of the risk of liability. That
determination, according to plaintiff, turns on an evaluation of the facts and the law—i.e., an
objective inquiry that is not concerned with the attorney’s beliefs. Second, plaintiff argues that
claiming attorney’s fees does not result in an at-issue waiver because the substance of the legal
advice is not relevant to evaluating the claim. Plaintiff asserts that the reasonableness of the
claimed fees is evaluated by reviewing hours worked and the tasks performed—both of which
can be determined by the fee statements. Finally, plaintiff argues that defendant has no
substantial need for KCP&L’s attorneys’ work product because (1) the facts of the Eubank action
are sufficient for defendant to argue against the settlement and (2) the billing statements provide
sufficient details to evaluate the claimed fees.
1. Settlement Decision
With regard to the settlement decision, the critical issue is whether plaintiff’s burden to
show that the settlement was reasonable puts at issue the legal advice underlying the decision to
settle.23 Although the contract between plaintiff and the GSA does not explicitly condition
22
The noted topics are addressed in Interrogatory No. 3 and Request for Production Nos.
8, 9, 14, 18, 19, and 20—all of which plaintiff responded to by withholding information on the
basis of the attorney-client and work-product privileges. Based on those objections, plaintiff
noted in the May 2017 Privilege Log that documents one through six, eight, nine, and eleven are
responsive but not being produced.
23
The parties also discuss whether plaintiff must show that it was potentially or actually
liable in the Eubank action to recover its settlement expenses, but neither party suggests that
plaintiff’s actual or potential liability in the Eubank action affects what is at issue in this case.
This approach appears to be correct as it is difficult to fathom how plaintiff’s attorney’s analysis
during the Eubank action would be vital to assessing plaintiff’s liability. Even without access to
privileged information, defendant cannot seriously argue that it is unable to conduct its own
review of the pertinent facts and law to mount a defense against plaintiff’s assertion that it faced
actual or potential liability.
-22-
indemnification of settlement costs on whether the settlement was reasonable, a reasonableness
requirement is nonetheless inferred into the agreement in the absence of express intent to the
contrary. See, e.g., Yakima Co. v. Lincoln Gen. Ins. Co., 583 F. App’x 744, 746 (9th Cir. 2014)
(collecting cases for the proposition that courts routinely imply a reasonableness component into
indemnity agreements); Conoco Inc. v. Boh Bros. Constr. Co., 191 F.R.D. 107, 111 (W.D. La.
1998) (addressing contractual indemnity and requiring the indemnitee show that it ‘acted in
accordance with equitable indemnity principles in making the settlement,’ i.e., that the settlement
was reasonable.” (quoting Parfait v. Jahncke Serv., Inc., 484 F.2d 296, 301 (5th Cir. 1973))).
The reasonableness inquiry requires evaluating the amount of the settlement in light of the size
of possible recovery and the probability of the claimant’s success against the indemnitee. Luria
Bros. & Co. v. All. Assur. Co., 780 F.2d 1082, 1091 (2d Cir. 1986); accord Burlington N., Inc. v.
Hughes Bros., 671 F.2d 279, 282 (8th Cir. 1982) (considering the same factors but couching the
analysis in terms of reasonableness and good faith); see also GAB Bus. Servs., Inc. v. Syndicate
627, 909 F.2d 755, 761 n.10 (11th Cir. 1987) (noting that courts consider “the certainty of
liability, the risks of going to trial and the chances that the jury verdict might exceed the
settlement offer”).
There is no controlling precedent on whether the reasonableness inquiry in the
indemnification context is an objective or subjective test. Outside of this jurisdiction, courts are
divided on the issue.24 Some follow the objective standard, which measures reasonableness
according to what a reasonably prudent person would consider acceptable. See Grace Vill.
Health Care Facilities, Inc. v. Lancaster Pollard & Co., No. 3:11CV29, 2013 WL 4012662, at *3
(N.D. Ind. Aug. 6, 2013); see also First Am. Title Ins. Co. v. Bowles Rice, LLP, No. 1:16cv219,
2017 WL 6329953, at *4 (N.D. W. Va. Dec. 11, 2017) (interpreting state law requiring that the
“amount paid was reasonable in light of the risk of exposure” and explaining that the standard
“does not involve inquiry into the subjective belief of a settling indemnitee”); Wrangen v. Penn.
Lumbermans Mut. Ins. Co., 593 F. Supp. 2d 1273, 1279 (S.D. Fla. 2008) (applying state law
premised on a similar standard and explaining that the inquiry considers what a reasonably
prudent person would believe); Jobe v. Int’l Ins. Co., 933 F. Supp. 844, 859 (D. Ariz. 1995)
(describing the test as “what a reasonably prudent person in the insured’s position would have
settled for on the merits of the claimant’s case,” which “involves evaluating the facts bearing on
the liability and damage aspects of the claimant’s case, as well as the risks of going to trial”).
Other courts, however, apply a subjective standard by considering what the indemnitee actually
believed such that the indemnitee’s analysis of the underlying case is at issue. See Aerospatiale
Helicopter Corp. v. Universal Health Servs., Inc., 778 S.W.2d 492, 500 (Tex. App. 1989) (stating
an indemnitee must “establish from its standpoint [that] the settlement was made in good faith
and was reasonable”); see also Abbott Labs. v. Alpha Therapeutic Corp., 200 F.R.D 401, 411
24
Further complicating the analysis, federal courts addressing the reasonableness of
settlements in the indemnification context have done so by applying state law while sitting in
diversity, e.g., Conoco, 191 F.R.D. at 117 (applying Louisiana law), while, in contrast, this case
is controlled by federal common law, see Al-Kurdi v. United States, 25 Cl. Ct. 599, 601 (1992)
(“In the context of contracts between the federal government and its citizens, the courts have
opted for a uniform federal common law of contracts as the federal rule of decision, to avoid the
uncertainty of conflicting state laws.”). The diversity decisions are nonetheless instructive given
the scarcity of precedent addressing the federal common law on these issues.
-23-
(N.D. Ill. 2001) (explaining that documents relating to the underlying litigation are the only way
for the indemnitor to evaluate the reasonableness of the indemnitee’s settlement costs); Conoco,
191 F.R.D. at 114 (similar).
Applying the objective standard is the better approach. An objective inquiry ensures that
both parties receive what they bargained for in the indemnification provision. Specifically, the
standard prevents an indemnitor from obtaining unjustified benefits (i.e., avoiding the obligation
to pay for a covered expense) while simultaneously assuaging any concerns against excessive or
bad-faith settlements.25 In contrast, the requirement to consider an indemnitee’s belief regarding
a settlement serves no obvious purpose other than to provide opportunities for an indemnitor to
reap windfalls by avoiding otherwise justified obligations to indemnify. Therefore, the court
adopts the objective standard for reasonableness when evaluating plaintiff’s settlement in the
indemnification context.
By submitting a claim for indemnification of settlement cost to the GSA and later filing a
claim for the same to this court, plaintiff did not waive the attorney-client or work-product
privilege with respect to information concerning plaintiff’s strategy—including KCP&L’s
analysis of the claims and decision to settle—in the Eubank action. As noted above, an at-issue
waiver requires that (1) the privilege was asserted as a result of an affirmative act by the
asserting party, (2) the affirmative act made the privileged information relevant to the case, and
(3) the application of the privilege would deny the opposing party access to information vital to a
defense. Hearn, 68 F.R.D. at 581. Plaintiff’s assertion of the attorney-client or the work-product
privilege satisfies only the first two prongs. As to the first prong, plaintiff asserted the privileges
in response to discovery requests concerning its claim for indemnification. The second prong is
also satisfied because defendant will likely need to repeat much of plaintiff’s privileged analysis
to determine whether the settlement was reasonable. But defendant loses on the third prong
because obtaining plaintiff’s analysis of the settlement is not vital to a defense in this case.
Because assessing reasonableness is an objective inquiry, plaintiff’s beliefs and KCP&L’s
attorneys’ analysis of the Eubank action have no bearing on whether the settlement is ultimately
reasonable. Armed with access to the applicable laws as well as the underlying facts (gleaned
through discovery or public records), defendant can assess “the size of possible recovery and
degree of probability of claimant’s success against the indemnitee.” Luria Bros. & Co., 780 F.2d
at 1091. That assessment is all that is required to mount a defense against plaintiff’s assertion
that it settled for a reasonable amount. Furthermore, for the same reasons that the information is
not vital, defendant’s argument that it has a substantial need for the work product related to
plaintiff’s decision to settle the Eubank action also fails.
In its second supplemental brief, defendant argues, for the first time, that the parties’
disagreement over coverage puts at issue plaintiff’s conduct in the Eubank action. Defendant
25
Because a reasonable person would not agree to settle for an unreasonable amount, a
bad-faith settlement likely fails the objectively reasonable requirement. But if such a settlement
was objectively reasonable (i.e., an indemnitee intended to settle for an unreasonable amount but
stumbled into an acceptable amount), there is no apparent reason for the indemnitor to be freed
from its contractual duty to pay because the indemnitee would not receive a benefit to which it
was not otherwise entitled.
-24-
disputes coverage for two reasons. First, defendant contends that the accident giving rise to the
claim did not occur on the GSA’s side of the property. Second, defendant asserts that the claims
in the Eubank action were based on negligence, which defendant states are not covered by the
indemnification agreement as a matter of public policy. The court is troubled by the fact that
defendant first raised this argument—waiver based on a dispute on coverage—in defendant’s
fifth brief on the motion to compel and in briefing that was requested on a different topic
(tension between the objective and subjective components of reasonableness). Nonetheless, the
court will consider the argument given that (1) plaintiff had the opportunity to respond and
(2) the argument has some merit.
Turning first to the dispute over where the injury occurred, an at-issue waiver is
inappropriate with respect to information concerning plaintiff’s attorneys’ analysis of whether
the accident occurred on plaintiff’s or the GSA’s side of the property. This information may be
helpful but it is not vital: defendant can render its own conclusion by reviewing the facts that are
a matter of public record or were shared through discovery. But a different result is warranted
with regard to plaintiff’s legal theories underlying the decision to settle the Eubank action.
Given that the settlement encompasses all potential claims, plaintiff is the only source for
learning whether the decision to settle was based solely on potential liability for negligence
(which may not be indemnifiable) or how much of the settlement was allocated to such a claim.26
Therefore, this information is at issue and vital such that an at-issue waiver is warranted. But the
waiver is limited to information pertaining to the assessment of the “theories on which [the
indemnitee’s] attorney[s] relied” to justify settlement. Abbott, 200 F.R.D. at 411. Thus, plaintiff
is ordered to supplement its answer to Interrogatory No. 8 by (1) stating whether KCP&L’s
settlement decision was premised on theories of liability sounding solely in negligence and (2) if
not, explaining what other legal theories were deemed to pose legal risk and how such risk
affected KCP&L’s evaluation of settlement (e.g., how much of the settlement plaintiff allocated
to each theory). In accordance with Request for Production No. 14, plaintiff must also produce
any documents relied on to supplement plaintiff’s response to Interrogatory No. 8.
2. Attorney’s Fees
To prevail on its claim for attorney’s fees, plaintiff must at least show that the claimed
fees are reasonable. See Yakima Co., 583 F. App’x at 746 (noting that courts require that the
attorney’s fees recovered pursuant to an indemnity contract be reasonable when the contract is
silent on the issue); Cotten v. Two “R” Drilling Co., 508 F.2d 669, 671 (5th Cir. 1975) (noting
that it is “well settled” that an indemnitee may recover “reasonable expenses” and “that these
expenses include attorney’s fees”). Given the reasonableness component of a fee claim, a party
seeking attorney’s fees waives the attorney-client and work-product privileges regarding the
work performed because the opposing party is not required to blindly accept that the claimed
dollar amount is reasonable. Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 731 (8th Cir.
2002). The scope of the waiver generally encompasses only the descriptions of the attorney’s
26
The court does not resolve the issue of whether the indemnification agreement covers
negligence claims because, regardless of how the issue is resolved, information concerning the
allocation of a settlement between negligence and nonnegligence claims is clearly relevant to a
defense. See RCFC 26(b)(1) (permitting discovery of information relevant to a defense).
-25-
tasks (e.g., time entries) and does not extend to the substance of the work. See Nationwide
Payment Sols., LLC v. Plunkett, 831 F. Supp. 2d 337, 339 & n.1 (D. Me. 2011) (recognizing a
waiver for invoices and noting that “[t]here is precedent for confining any such implied waiver to
the fee invoices themselves, eschewing any finding of a broader waiver as to the underlying
subject matter”); see also Ideal Elec. Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143, 151-52 (D.C.
Cir. 1997) (explaining that a claim for attorney’s fees requires nonredacted billing statements);
Feld v. Fireman’s Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013) (applying waiver to
invoices as well as materials explaining the charges); 670 Apartments Corp. v. Agric. Ins. Co.,
No. 96CIV.1464(PKL)(JCF), 1997 WL 801458, at *1-2 (S.D.N.Y. 1997) (explaining that a claim
for attorney’s fees does not put the substance of the advice at issue and that such a claim can be
evaluated by reference to the time records); Remington Arms Co. v. Liberty Mut. Ins. Co., 142
F.R.D. 408, 414 (D. Del. 1992) (explaining that a party “claiming that its attorney’s fees or
actions in the underlying litigation were reasonable . . . does not forfeit its protection of the
privileged documents” so long as the party does not rely on the nature of the legal advice or
introduce its contents to establish liability). This approach comports with the rationale for the at-
issue-waiver rule because requiring plaintiff to disclose meaningful information regarding the
nature of the work is necessary for a substantive debate over the claimed attorney’s fees See
Pamida, 281 F.3d at 732 (explaining that an at-issue waiver is appropriate when a party seeks a
greater advantage from its control over privileged material than necessary for a healthy
adversarial system).
Defendant presents no compelling reason to deviate from the norm. Although knowing
the substance of the analysis giving rise to the payment of attorney’s fees would provide insight
into whether a line of inquiry was fruitful, the reasonableness inquiry does not depend on such
after-the-fact evaluations of attorney conduct. Cf. Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 421-22 (1978) (addressing a statute providing an award of attorney’s fees to a
successful defendant when the plaintiff’s claim was unreasonable and noting the importance of
“resist[ing] the understandable temptation to engage in post hoc reasoning by concluding that,
because [the claimant] did not ultimately prevail, his action must have been unreasonable or
without foundation”). It is sufficient that a line of inquiry was reasonable when started and an
appropriate amount of time was spent on the task—information that can be gleaned from
itemized descriptions of the tasks on a billing statement when viewed in conjunction with the
facts of the case. Additionally, defendant’s concern that the billing statements lack sufficient
detail to evaluate the reasonableness of the work performed provides no basis to expand the
scope of an at-issue waiver because a party cannot recover fees premised on vague or generic
descriptions. See, e.g., Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992) (affirming reduction
of hours where “several entries contain[ed] only gauzy generalities” too nebulous to allow the
opposing party to dispute their accuracy or reasonableness); In re Donovan, 877 F.2d 982, 995
(D.C. Cir. 1989) (affirming exclusion of hours with “vague description[s] such as legal issues,”
“conference re all aspects,” and “call re status”). In light of the above, the at-issue waiver
flowing from plaintiff’s claim for attorney’s fees does not apply beyond the billing statements
that the parties indicate were already exchanged. Given that defendant can evaluate the
reasonableness of the claimed fees based on these statements, defendant’s argument that it has a
substantial need for the underlying work product also fails.
E. Express Waiver
-26-
In addition to advancing arguments in support of an at-issue waiver, defendant contends
that the plaintiff expressly waived the asserted privileges with respect to certain information.
1. Claim Submitted to the Contracting Officer
Defendant initially argued that plaintiff waived any privileges associated with Request
for Production Nos. 13 and 15 by asserting privilege for the first time in the privilege logs
provided more than thirty days after plaintiff’s response was due. Defendant subsequently
withdrew this argument in its supplemental reply brief. Defendant continues to argue, however,
that plaintiff withheld responsive information to Interrogatory No. 7 on the basis of the attorney-
client or work-product privilege despite waiving those privileges by not stating them in response
to the interrogatory. Defendant further contends that the waiver extends to the documents
plaintiff used to answer Interrogatory No. 7—which defendant requested in Request for
Production No. 13—but is withholding as privileged, as reflected on the March 2017 Privilege
Log and the May 2017 Privilege Log. Relying on United States v. Phillip Morris, Inc., 347 F.3d
951 (D.C. Cir. 2003), plaintiff responds that it did not waive any privileges because KCP&L was
entitled to wait until the resolution of its objections to the scope and relevance of the
interrogatory before stating attorney-client or work-product objections.
The court agrees with defendant that plaintiff’s answer to Request for Production No. 13
suggests that details responsive to Interrogatory No. 7 are being withheld on the basis of
privilege. Thus, the question is whether that information can be withheld based on a delayed
claim of privilege. After an interrogatory is served, the responding party has thirty days to
answer the substance of the request and state any objections. RCFC 33(b)(2). “Any ground not
stated in a timely objection is waived unless the court, for good cause, excuses the failure.”
RCFC 33(b)(4). Here, plaintiff failed to lodge any privilege objections to Interrogatory No. 7
within thirty days of the interrogatory being served and presents no argument why good cause
exists to preclude waiver. Accordingly, plaintiff waived those objections as to Interrogatory No.
7 and is ordered to supplement its answer to Interrogatory No. 7 with any information that was
withheld on the basis of the attorney-client or work-product privilege.27
Plaintiff’s argument that Phillip Morris changes the waiver dynamic is unconvincing. In
Phillip Morris, the United States Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) held that a party is entitled to a ruling on its nonprivilege objections to a request for
production before being obligated to list documents purportedly covered by those objections on a
privilege log. Id. at 952. The D.C. Circuit explained that, in that scenario, a party only risks
27
Defendant makes a passing reference to subject matter waiver in the briefing without
developing the argument by, for example, proposing the scope of such a waiver. The parties also
have not had the opportunity to discuss the developments in this case giving rise to the subject
matter waiver—i.e., the recognition of a waiver for Interrogatory No. 7. Accordingly, an order
determining scope of a subject matter waiver and compelling disclosure based on that decision is
premature. The parties should attempt to resolve any such issues amongst themselves. See
RCFC 37(a) (emphasizing the importance of parties working together to resolve disputes before
turning to the courts).
-27-
waiver when the documents do not fall within the scope of the objection or the objection was
made in bad faith. Id. But Phillip Morris is inapplicable here because the decision dealt with
requests for production under FRCP 34—a rule that does not contain an automatic waiver
provision akin to the one governing interrogatories. See FRCP 34(b)(4); see also Flintco, Inc. v.
United States, No. 10-178C, 2012 WL 3276158, at *4 (Fed. Cl. Aug. 10, 2012) (noting that
RCFC 33 (interrogatories) contains an automatic waiver provision while RCFC 34 (requests for
production) does not). Indeed, since Phillip Morris was decided, courts have held that a party
waives attorney-client or work-product objections by failing to assert them within the time frame
to respond to interrogatories regardless of whether other objections were submitted in response.
See, e.g., Cardenas v. Dorel Juvenile Grp., Inc., 231 F.R.D. 616, 620 (D. Kan. 2005) (concluding
that privilege objections to interrogatories were waived when the objections were not included
with the timely submitted objections based on other grounds).
2. Settlement Discussions
Defendant also moves to compel responses to discovery requests concerning settlement
discussions on the theory that plaintiff expressly waived any privileges that would justify
withholding information on that topic. Defendant focuses its argument on Interrogatory No. 8,
which contained defendant’s request for information concerning the meditation and settlement in
the Eubank action, and the related Request for Production No. 19. Defendant gives particular
attention to a mediation statement (document five on the May 2017 Privilege Log) that is
responsive to the request for production but was not produced. Plaintiff does not respond to
defendant’s argument.
Turning first to Interrogatory No. 8, defendant nominally argues that plaintiff may be
providing an incomplete response because plaintiff’s answer was provided subject to assertions
of the attorney-client and work-product privileges. Defendant baldly claims that neither
privilege is applicable, but fails to explain why that is so. Instead, defendant focuses exclusively
on withheld documents—the mediation statement and other documents that plaintiff did not
produce in response to Request for Production No. 19.28 The relationship, if one exists, between
the argument concerning the withheld documents and the interrogatory is unclear, and the court
will not further address the matter, especially given that the court is ordering plaintiff to
supplement its answer to Interrogatory No. 8 with additional facts. See United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in
briefs.”),
With regard to Request for Production No. 19, defendant argues that plaintiff must
produce any responsive documents that were shared with the Eubank action claimants because
the work-product privilege does not apply to documents that were shared with a third party. The
privilege logs currently before the court, however, do not show any other documents that were
28
Defendant argued against the existence of a settlement privilege—a privilege that was
only asserted as a basis to withhold document five in the May 2017 Privilege Log. Defendant
also argued that the work-product privilege did not apply to the (1) mediation statement because
it was unclear that plaintiff attempted to maintain its confidentiality or (2) documents shared
between the parties in the Eubank action.
-28-
both withheld in this case and shared with the claimants in the Eubank action. An order
compelling the production of documents that may not exist is imprudent at this time, especially
given that the dispute may become moot when plaintiff supplements its privilege log or states
that no additional documents are being withheld. See supra Section III.B (ordering plaintiff to
review its privilege logs for missing documents).
As to the mediation statement, defendant argues that plaintiff improperly withheld the
document because the asserted privileges—the work-product and settlement-communication
privileges—are inapplicable. The work-product privilege does not act as a barrier to production
because plaintiff fails to explain why that privilege was not waived by sharing the document with
the mediator—a third party who was working with both parties. See Genentech, 122 F.3d at
1415 (noting that sharing work-product materials with a third party generally results in a waiver);
United States v. Deloitte LLP, 610 F.3d 129, 140 (D.C. Cir. 2010) (“[T]he voluntary disclosure
of attorney work product to an adversary or a conduit to an adversary waives work-product
protection for that material.”). As to the settlement-communication privilege, the Court of
Appeals for the Federal Circuit (“Federal Circuit”) has declined to recognize such a privilege. In
re MSTG, Inc., 675 F.3d 1337, 1348 (Fed. Cir. 2012). The Federal Circuit explained that “the
public policy goals argued to support a [settlement-communication] privilege can more
appropriately be achieved by limiting the scope of discovery”—i.e., imposing a heightened
standard to obtain settlement information. Id. at 1347. That same rationale applies equally to
mediation communications. Indeed, the Federal Circuit supported its decision, at least in part, by
discussing how the ruling was in accord with a decision by the United States Court of Appeals
for the Second Circuit’s that imposed a heightened standard to discover mediation materials. Id.
Accordingly, plaintiff’s assertion of a settlement-communication privilege cannot justify
withholding the mediation statement, and plaintiff is ordered to provide the document to
defendant.29
3. AEGIS Documents
Defendant next moves to compel plaintiff to produce responsive documents that were
shared with AEGIS and withheld based on the joint-defense,30 attorney-client, or work-product
privilege.31 Defendant argues that plaintiff must produce the documents because plaintiff, by
29
For the same reasons discussed with regard to Interrogatory No. 7, an analysis of
subject matter waiver is premature. See supra note 27. Before the court intervenes on that topic,
the parties should attempt to work together to resolve any discovery issues resulting from the
decision compelling production of the mediation statement.
30
As noted above, the “joint-defense privilege” is more accurately called the “common-
interest rule.” Defendant, however, treats the two terms as reflecting separate but related
concepts—a belief that is not unfounded (even if this court disagrees). For the sake of clarity,
the court outlines defendant’s argument as it was presented in the briefs but analyzes the waiver
issue by discussing the common-interest rule—a concept that envelops the joint-defense
privilege.
31
Using the May 2017 Privilege Log as a reference, defendant explains that it is seeking
to compel production of documents one through six, nine, eleven, and twelve because they were
-29-
sharing the information with AEGIS (a third party), waived any privilege. Defendant contends
that the joint-defense privilege does not preclude a waiver of the attorney-client or work-product
privilege because plaintiff fails to show that it and AEGIS were coparties in the Eubank action,
exchanged legal advice in the withheld communications, or entered into a written joint-defense
agreement. Acknowledging the overlap between the joint-defense privilege and the common-
interest rule, defendant also contends that the common-interest rule does not apply because
plaintiff fails to demonstrate that (1) it and AEGIS employed a single lawyer to act for them in
the Eubank action, (2) AEGIS was obligated to defend plaintiff in the Eubank action, or
(3) plaintiff and AEGIS’s communications were related to anything other than business
communications. Even if the common-interest rule applies, defendant argues that plaintiff must
produce all of the documents shared with AEGIS because plaintiff created a subject matter
waiver by producing to defendant one of the documents—document six in the May 2017
Privilege Log—that was shared with AEGIS.
Plaintiff responds that the common-interest rule applies. Specifically, plaintiff contends
that the rule applies here because (1) AEGIS, as plaintiff’s excess insurer, possessed a direct
economic stake in the Eubank action and (2) AEGIS and plaintiff shared a common interest in
the outcome of that case as well as recovering money from defendant. Plaintiff also asserts that
the common-interest rule, contrary to defendant’s argument, applies when the parties who
exchange information have different attorneys. Plaintiff is silent on the matter of a subject
matter waiver.
Defendant presents the stronger argument given some notable omissions in plaintiff’s
briefing. Despite bearing the burden of showing that the common-interest rule applies, plaintiff
does not provide details regarding AEGIS’s role during or after the Eubank action other than
stating that AEGIS was plaintiff’s excess insurer. Importantly, plaintiff does not address
whether AEGIS appointed plaintiff’s counsel or was required to defend plaintiff in the Eubank
action. On these facts, plaintiff cannot establish that the common-interest rule applies to
information shared with AEGIS prior to the settlement, and a decision regarding the rule’s
application to information shared after the settlement is premature. Both are addressed in turn.
a. Pre-Eubank Action Settlement
Plaintiff identified one document—document six on the May 2017 Privilege Log—that
was shared with AEGIS prior to settling the Eubank action. The fact that this information was
shared with a third party constitutes a waiver of the attorney-client and work-product privileges
unless plaintiff demonstrates that the common-interest rule applies. Plaintiff fails to make such a
showing.
“shared or exchanged with [plaintiff’s insurer].” Def.’s Suppl. Br. 6. But see Def.’s Mot. 26
(explaining that the AEGIS materials include documents six, nine, eleven, and twelve on the
May 2017 Privilege Log). The privilege log, however, does not reflect that all of those
documents were shared with AEGIS; indeed, plaintiff states in the privilege log that only
documents six, nine, eleven, and twelve were directed to AEGIS, and defendant does not explain
why it concludes that the remaining documents were shared with the insurer.
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First, plaintiff presents insufficient evidence that it shared a common interest with AEGIS
during the time in question. The fact that AEGIS was plaintiff’s excess insurer—the only
evidence plaintiff presents to support its argument for applying the common-interest rule—is not
enough. See N.L. Indus., Inc. v. Commercial Ins. Co., 144 F.R.D. 225, 232 (D.N.J. 1992)
(“Mere status as an insurer or an insured is not enough to establish a commonality of interest.”).
In the insurer-insured context, a common interest requires, at least, that the insurer (1) was
obligated to defend the insured and (2) paid or appointed the insured’s counsel. See N. River
Ins. Co. v. Phila. Reins. Corp., 797 F. Supp. 363, 366 (D.N.J. 1992) (“The common interest
[rule] has been recognized in the insured/insurer context when counsel has been retained or paid
for by the insurer . . . .”); Nationwide Mut. Ins. Co. v. LaFarge Corp., No. H-90-2390, 1992 U.S.
Dist. LEXIS 21838, at *8 (D. Md. 1992) (agreeing with other courts that the common-interest
rule applies “only when it has been determined that the defendant insurer is obligated to defend
the underlying action brought against the insured”); Cary-Canada, Inc. v. Aetna Cas. & Sur. Co.,
118 F.R.D. 250, 251 (D.D.C. 1987) (explaining that the common-interest rule does not apply
when an insurer was not obligated to defend the insured and did not assume that defense).
Plaintiff has not established either element; there is no indication that AEGIS was obligated to
defend plaintiff, appointed plaintiff’s counsel, or paid for plaintiff’s counsel while plaintiff was
exchanging information with AEGIS regarding the ongoing Eubank action.32
Second, even if there was a common interest, plaintiff fails to demonstrate that any
communications prior to the settlement were made in furtherance of the shared interest. In the
May 2017 Privilege Log, plaintiff provided a vague description of the withheld document—
“[c]ommunication with insurer related to litigation,” Def.’s Mot. App. 91—and presents no other
evidence reflecting the purpose of the communication. Although evidence submitted by
defendant reflects that plaintiff kept AEGIS informed of the proceedings, the purpose of the
updates is unclear. See Strougo v. BEA Assocs., 199 F.R.D. 515, 520 (S.D.N.Y. 2001)
(requiring that parties demonstrate actual cooperation toward a common legal goal and noting
that theoretically sharing similar interests is insufficient). The lack of clarity is especially
important in the context of insurance because insureds may exchange business communications
with an insurer as part of a contractual obligation to keep the insurer informed regarding a claim
rather than as part of an effort to further a common interest. See In re Imperial Corp. of Am.,
167 F.R.D. 447, 455 (S.D. Cal. 1995) (explaining that mandated exchanges of information in the
insurance context do not qualify as communications in furtherance of a common interest).
In sum, plaintiff fails to show that the common-interest rule applies to information
exchanged between plaintiff and AEGIS prior to the settlement of the Eubank action. Because
the common-interest rule does not apply, plaintiff waived any claim to the attorney-client or
work-product privilege by sharing the information with AEGIS. Therefore, plaintiff must
produce to defendant any documents shared with AEGIS prior to the settlement that are
responsive to a request for production.33
32
The record suggests that payment was made after the case had concluded.
33
By ordering production of all responsive documents shared with AEGIS prior to the
settlement, there is no need to consider whether the apparent production of document six on the
May 2017 Privilege Log results in a subject matter waiver. Moreover, an order compelling
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b. Post-Eubank Action Settlement
Turning to the information exchanged between plaintiff and AEGIS after the Eubank
action settlement,34 a determination regarding applicability of the common-interest rule in that
context requires additional information. Plaintiff appears to satisfy the first prong: AEGIS and
plaintiff having a common interest in pursuing a claim against the GSA to recover the amounts
they spent on the Eubank action. But plaintiff fails to demonstrate that it satisfies the rule’s
second prong: the court cannot discern whether the documents were shared in furtherance of a
common interest because the descriptions in the privilege log are vague. Specifically, in the May
2017 Privilege Log, plaintiff provides the following descriptions:
 Communication with insurer related to anticipated litigation.
 Communication related to pursuing anticipated litigation.
 Communication with AEGIS discussing contribution and
indemnity claim.
Def.’s Mot. App. 92. Those descriptions, without additional context, are amenable to two
interpretations—one favoring the common-interest rule and one that does not. Indeed, the
communications could reflect that plaintiff was either (1) providing AEGIS with contractually
mandated updates regarding potential claims that plaintiff intended to pursue or (2) discussing
with AEGIS potential legal strategies that the companies could pursue to recover their settlement
costs and expenses from defendant. Without more detail regarding the purpose of these
communications, a decision on the application of the common-interest rule is premature.
Accordingly, plaintiff is ordered supplement its privilege log with enough detail to enable
defendant (or, if necessary, the court) to assess the purpose of plaintiff’s withheld
communications with AEGIS that postdate the Eubank action settlement.
F. Adverse Interest
Finally, defendant argues that an adverse inference may be warranted at a later date if
plaintiff fails to comply with future discovery obligations. If noncompliance issues arise in the
future, defendant is welcome to raise those concerns and request an adverse inference. But a
ruling now on such potential conduct and the consequences thereof is premature. Thus, the
request for an adverse inference is denied.
G. RCFC 37 Expenses
discovery based on a subject matter waiver is premature for the same reasons discussed above
with regard to Interrogatory No. 7. See supra note 27.
34
These documents are identified in the May 2017 Privilege Log as documents nine,
eleven, and twelve.
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Given that both parties have prevailed in part, they may both move for reasonable
expenses in accordance with RCFC 37(a)(5)(C). Any award under that rule, however, is
discretionary. RCFC 37(a)(5)(C) (“If the motion is granted in part and denied in part, the
court may . . . apportion the reasonable expenses for the motion.”); accord New Orleans Reg’l
Physician Hosp. Org., Inc. v. United States, 122 Fed. Cl. 807, 820 (2015) (noting that the RCFC
37(a)(5)(C) “standard allows the court to exercise discretion in determining if attorney’s fees are
warranted”). Here, the novelty and complexity of most of the issues would seem to suggest that
expenses are not appropriate for either party. See Fairholme Funds, Inc. v. United States, 132
Fed. Cl. 391, 393 (2017) (explaining that fees are not appropriate when there is a genuine dispute
or if reasonable people could disagree). Nonetheless, the court will not prevent the parties from
seeking such relief.
IV. CONCLUSION
In sum, the court GRANTS IN PART and DENIES IN PART defendant’s motion to
compel. As explained in greater detail above, plaintiff must supplement its discovery responses
by:
 adding facts to the responses to Interrogatory Nos. 4 and 8;
 updating its most recent privilege log with any documents that
are being withheld based on a privilege;
 supplementing its most recent privilege log with details
regarding the purpose of any communications with AEGIS that
postdate the Eubank action settlement;
 producing documents 5, 13, and 14 as identified in the May
2017 Privilege Log, as well as any documents shared with
AEGIS that predate the Eubank action settlement;
 identifying whether its settlement decision was premised on
theories of liability sounding only in negligence and producing
any documents relied on to determine that answer;35 and
 revising its response to Interrogatory No. 7 with any
information that was withheld on the basis of the attorney-client
or work-product privilege.
The parties shall file a joint status report by than no later than Thursday, August 16, 2018,
setting forth a proposed schedule for complying with this order. In that the report, the parties
35
As noted in Section III.E.3.a., supra, if plaintiff states that it settled in part because of
potential liability for nonnegligence claims, then plaintiff must identify the potential claims and
how those claims affected KCP&L’s decision to settle.
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should also present their respective positions on whether the deadlines for plaintiff to supplement
its responses and the deadlines for the discovery matters addressed in the court’s December 18,
2017 order should be set based on when defendant’s motion for judgment on the pleadings is
resolved.
Additionally, the court has filed this ruling under seal. The parties shall confer to
determine agreed-to proposed redactions. Then, by no later than Thursday, August 23, 2018,
the parties shall file a joint status report indicating their agreement with the proposed redactions,
attaching a copy of those pages of the court’s ruling containing proposed redactions, with all
proposed redactions clearly indicated.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Chief Judge
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