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MERGENTIME CORP. v. WASHINGTON METRO. AREA TRANSP.

March 25, 1991

MERGENTIME CORPORATION, et al., Plaintiffs,
v.
WASHINGTON METROPOLITAN AREA TRANSPORTATION AUTHORITY, Defendant, Counter-Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA, Counter-Defendant


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 I. Waiver by Disclosure

 In support of their first argument, the plaintiffs rely on this Circuit's decision in In re Sealed Case, 278 U.S. App. D.C. 188, 877 F.2d 976 (D.C. Cir. 1989), that disclosure of a document protected by the attorney/client privilege constitutes a waiver of the privilege as to that document and related information. Pl. Memorandum at 24-25. WMATA tries to avoid the harsh subject matter waiver rule of In re Sealed Case by stressing the "inadvertent" nature of the disclosure and the fact that the materials disclosed were handwritten notes which contained "no indicia" of confidentiality on their face. Def. Memorandum at 12-13. The Court finds, however, that WMATA's arguments are foreclosed by the clear language of the Circuit Court's decision.

 In setting forth the subject matter waiver rule in In re Sealed Case, the Circuit Court refused to "distinguish between various degrees of 'voluntariness' in waivers of the attorney-client privilege." 877 F.2d at 980. The Court explained:

 
Normally the amount of care taken to ensure confidentiality reflects the importance of that confidentiality to the holder of the privilege. To hold, as we do, that an inadvertent disclosure will waive the privilege imposes a self-governing restraint on the freedom with which organizations such as corporations, unions, and the like label documents related to communications with counsel as privileged. To readily do so creates a greater risk of "inadvertent" disclosure by someone and thereby the danger that the "waiver" will extend to all related matters, perhaps causing grave injury to the organization. But that is as it should be.

 Id. Thus, even WMATA's asserted inadvertent production of the handwritten documents at issue here will lead to a waiver of the attorney/client privilege. *fn2"

 Once a waiver of the attorney/client privilege is established, the Court must determine the scope of the waiver. As the Circuit Court has recognized, the Court's determination "properly depend[s] heavily on the factual context in which the privilege is asserted." 877 F.2d at 981. In this case, the factual context of the disclosure supports only a narrow waiver of the privilege. The documents produced were not the notes of either WMATA's attorney or its contracting officer, who ultimately decided to terminate the contracts at issue; rather, they are the notes of some other WMATA personnel. The documents consist of terse entries reflecting discussions at meetings at which WMATA's counsel was present. Although some of the entries attribute certain comments or information to WMATA's general counsel, Robert Polk, it is not always clear that the subject of the information is legal advice.

 The Court finds that the waiver resulting from these notes does not entitle the plaintiffs to the other privileged documents sought. Instead, the Court holds that the waiver only opens the door for the plaintiffs to discover from Mr. Polk whether, in fact, he made the statements reflected in the notes and to discover whether the statements were considered and relied upon by WMATA's contracting officer in deciding to terminate the Shaw and U Street Station contracts.

 II. Waiver by WMATA's Placing its Termination Decision into Issue

 The plaintiffs have cited numerous cases in support of their argument that WMATA has waived its attorney/client privilege as to advice given by counsel to WMATA concerning its decision to terminate plaintiffs' contracts by placing the termination of the two station contracts into issue in this litigation. The plaintiffs, however, have interpreted the caselaw that they rely upon too broadly.

 Unlike the cases of Byers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983), PEPCO v. California Union Insurance Company, No. 88-2091 (D.D.C. Feb. 14, 1990), or Monsanto Co. v. Aetna Casualty and Surety Company, No. 88C-JA-118 (Del. Sup. Ct. May 25, 1990), WMATA has not put its attorney's conduct directly at issue in this litigation by raising claims of legal malpractice or by seeking defense costs. Nor have the plaintiffs established that WMATA has sought to use the privilege "in a way that is not consistent with the purpose of the privilege." United States v. Western Electric Company, Inc., 132 F.R.D. 1 (D.D.C. 1990). These factual distinctions preclude any reliance on those decisions by this Court.

 Nonetheless, plaintiffs argue that WMATA's counsel's advice is "inextricably intertwined with the central issue of this case" and therefore is not protected by the attorney/client privilege. Pl. Reply at 12. The Court, however, cannot accept this rationale, which could basically apply to any business judgment. Short of some additional showing to support a finding that WMATA has placed its attorney's conduct at issue ...


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