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 in this case, the Court will not deny WMATA the protection of the attorney/client privilege on this basis.
For the foregoing reasons, the Court grants the plaintiffs' motion in part and will permit plaintiffs (1) to question WMATA's counsel concerning whether he made the statements attributed to him in the documents which were inadvertently produced and (2) to question WMATA's contracting officer concerning whether he considered and relied upon any such statements in deciding to terminate the Shaw and U Street Station contracts.