Government Contracting Database
As stated by the General Services Board of Contract Appeals,
The essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except that the protection be waived.
Suggested Statement to Assert the Privilege:
The (CONTRACTOR) asserts that the following documents, tabbed as attorney-client (AC), are exempt from discovery on the basis of the attorney-client privilege. That privilege extends to all communications between the attorney and client to the extent that those communications seek or render legal advice, and are made in confidence. (INSERT LEGAL AUTHORITY APPROPRIATE TO THE JURISDICTION). (See also 8 WIGMORE, Evidence ‘2292).
The CONTRACTOR affirmatively raises and asserts its attorney-client privilege and does not waive that privilege in any matter with respect to the tabbed documents listed in the attached index. It raises this privilege before and disclosure of the communication has been made; confidentiality has not been breached by disclosure. United States v Gurtner, 474 F .2d 297 (9th Cir. 1973).
The privilege extends to the giving of information to the attorney by the client in order for sound and informed advice to be rendered. Upjohn Co. v. United States, 449 U.S. 383 (1981). Therefore, the privilege would extend to those documents provided by the District of Columbia to its counsel for advice, in addition to the advice rendered by counsel. Coastal States Gas Corp. v DOE, 617 F .2d 854 (D.C. Cir. 1980).
Updated: July 24, 2018