________________________________________ MOTION GRANTED IN PART: October 22, 1996 ________________________________________ GSBCA 13152, 13530 EARL C. WILSON, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. David C. Hammond, Elliott B. Adler, and Richard A. Medway of Powell, Goldstein, Frazer & Murphy, Washington, DC, counsel for Appellant. John C. Ringhausen, Office of Regional Counsel, General Services Administration, Atlanta, GA; and Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. NEILL, Board Judge. Appellant has filed a motion to compel discovery concerning certain matters of relevance to these appeals. In accordance with instruction issued by the Board earlier in these proceedings, counsel for appellant, in bringing this motion to compel, have been specific with regard to the areas of concern and documents on which they wish to have discovery. In an effort to reconstruct events surrounding Supplemental Lease Agreement (SLA) Nos. 20 and 20(a), appellant has made the following requests: Production Request No. 7. Produce all documents relating to telephone or other oral conversations of Ms. Robin Wall relating, concerning or referring to the Lease. Production Request No. 10. Produce all documents maintained by [20 listed individuals, including Robin Wall] that relate to the Overtime use of the Facility or the amount of compensation paid or to be paid to the Lessor for such Overtime use of the Facility . . . . Production Request No. 13. Produce all documents relating to Ms. Robin Wall's denial of executing SLA No. 20A to the Lease. Production Request No. 16. To the extent not produced in response to Request Nos. 13-15, produce all documents relating to the execution or nonexecution of SLA Nos. 20 or 20A by the contracting officer. Production Request No. 17. To the extent not produced in response to the Appellant's Request for Production Nos. 1-16, produce all documents relating to GSA's liability to the Lessor for payment of compensation resulting from GSA's Overtime use of the Facility. Interrogatory No. 43. Separately for [20 listed individuals, including Robin Wall], explain in detail whether the individual participated in any meeting or discussion regarding the amount of compensation paid or to be paid to the Lessor for the Government's Overtime use of the Facility and if so, identify the date and attendees of each such meeting or discussion and all documents relating to such meeting or discussion. Appellant's Memorandum of Law in Support of its Motion to Compel at 7-8. Appellant contends that the Government has responded to Production Requests Nos. 13, 16 and 17 by stating that "[s]ubject to prior objections, all such documents have been provided to appellant". As to Production Request Nos. 7 and 10, appellant contends that no written response has been provided and, in reply to Interrogatory No. 43, the Government is said to have replied as follows: Response No. 43: The information requested by appellant in Interrogatory No. 43 would be contained in documents that have been provided to appellant or will be made available to appellant for inspection and copying at a mutually agreeable time at respondent's offices, and the burden of deriving the answers from those documents is substantially the same for appellant as it is for respondent. Another area of particular concern to appellant involves the issue of whether the Government's regional Office of Counsel approved SLA Nos. 20 or 20A. Among the discovery requests on this issue are the following: Production Request No. 15. Produce all documents relating to reviews by GSA legal counsel of GSA's liability to the Lessor in connection with SLA No. 20A to the Lease. Request for Admission No. 15. GSA's legal counsel residing in the department referred to as "4L" reviewed SLA No. 20 prior to the date of that document (December 5, 1989). Request for Admission No. 16. GSA's legal counsel residing in the department referred to as "4L" reviewed SLA No. 20A prior to the date of that document (January 11, 1990). Request for Admission No. 17. GSA's legal counsel residing in the department referred to as "4L" approved SLA No. 20. Request for Admission No. 18. GSA's legal counsel residing in the department referred to as "4L" approved SLA No. 20A. Interrogatory No. 68. With respect to GSA's legal division referred to as "4L", please identify and/or explain in detail the following: * * * (c) the nature of 4L's involvement in the review of SLA Nos. 20 and 20A. Interrogatory No. 71. If the Respondent's Answer to Request for Admission No. 15 is an affirmative response, identify the individual(s) within 4L who reviewed SLA No. 20. Interrogatory No. 72. If the Respondent's Answer to Request for Admission No. 16 is an affirmative response, identify the individual(s) within 4L who reviewed SLA No. 20A. Interrogatory No. 73. If the Respondent's Answer to Request for Admission No. 17 is an affirmative response, identify the individual(s) within 4L who approved SLA No. 20. Interrogatory No. 74. If the Respondent's Answer to Request for Admission No. 18 is an affirmative response, identify the individual(s) within 4L who approved SLA No. 20A. Appellant's Memorandum of Law in Support of its Motion to Compel at 8-9. The Government is said to have declined to respond to all of these discovery requests based upon the attorney-client privilege and the attorney work product privilege. Finally, the Government has produced a privilege log which lists 120 documents which it is withholding from appellant while relying upon the attorney-client privilege, the attorney work product privilege, and/or the deliberative process privilege. Appellant contends that respondent should be stripped of the right to invoke privilege both with regard to much of the documentation currently being withheld and also with regard to any testimonial evidence which might be elicited regarding the documents and their subject matter. Appellant marshals several arguments in support of this contention that respondent should be denied the right to invoke privilege. First, appellant argues that the contracting officer has falsely denied or concealed from GSA legal counsel that she executed SLA No. 20(a) and that this fraudulent scheme is, therefore, an abuse of the attorney-client privilege. It is well established that communications protected by privileges such as the attorney-client privilege or the attorney work product privilege lose their protection if the privileged relationship is used to further a crime, fraud, or other fundamental misconduct. Such privileges, if abused, are said to vanish when abuse is shown to the satisfaction of the judge. Clark v. United States, 289 U.S. 1, 15 (1933). Relying on this crime-fraud exception, appellant contends that the contracting officer's alleged improper conduct renders her communications with GSA legal counsel and all related documents subject to discovery. Appellant also argues that, in the responses the Government has provided to discovery requests, the Government has already disclosed attorney-client communications and attorney work product with the result that any application of the attorney- client or attorney work product privileges has, in effect, been waived. Finally, appellant contends that respondent's invocation of privilege is untimely under the Board's rules and should, therefore, be denied. We deal with appellant's arguments in the order presented. The Crime-Fraud Exception Counsel for appellant have provided us with a declaration from their client, given under penalty of perjury, which states that in early 1990 he received a corrected copy of SLA No. 20(a) from the contracting officer, signed it, and returned it to her. Appellant further declares that the contracting officer then signed the modification herself and returned an original copy to him during or shortly after a meeting related to the lease. Thereafter, however, appellant contends that "a representative of GSA" asked him to return his original copy of the modification. He claims to have done so after making a photocopy of the modification for his records. A copy of the photocopy is provided as an exhibit to the declaration. SLA No. 20(a) is of considerable importance to these appeals, and in particular to Count I, which alleges that the Government is contractually bound to compensate appellant for overtime use of appellant's warehouse based upon the rate allegedly agreed to in that modification. In reply to earlier discovery requests, the current contracting officer has denied that SLA No. 20(a) was signed by her predecessor. Her predecessor, on the other hand, in a declaration given under penalty of perjury, states that she has no recollection of signing or executing a revised SLA No. 20(a). She has likewise declared that she did not remove a signed copy of the revised SLA No. 20(a) from GSA or tamper with or destroy a signed revised SLA No. 20(a). The realty specialist assisting the contracting officer at that time has also provided a declaration under penalty of perjury. She states that she never saw a revised SLA No. 20(a) signed by both parties. Respondent's Opposition to Appellant's Motion to Compel, Attachments 6, 11. As noted above, the Government has objected on the basis of privilege to several of appellant's discovery requests aimed at reconstructing events relating to SLA No. 20 and SLA No. 20(a) and the alleged approval of the modifications by regional Office of Counsel. In reply, counsel for appellant, relying on the copy of the revised SLA No. 20(a) allegedly signed by both parties and recently supplied by appellant, now argues that, based on the crime-fraud exception, respondent has no right to invoke privilege. Appellant writes: Evidence indicates that the contracting officer . . . executed Supplemental Lease Agreement No. 20A . . . that thereafter the contracting officer committed fraud and deceit upon both the Appellant and GSA by knowingly making material misrepresentations that she did not execute SLA No. 20A or, in the alternative, actively concealing the material fact that she executed SLA No. 20A from GSA officials. Appellant's Motion to Compel Discovery and to Request an In Camera Review at 2-3. We decline to apply the crime-fraud exception for two principal reasons. First, we agree with respondent that appellant's declaration and the attached copy of the revised SLA No. 20(a) allegedly signed by both parties is beset with significant credibility problems. In the absence of additional evidence, we are not prepared to conclude that these materials provide a reasonable basis to suspect the perpetration of a fraud by the contracting officer. Appellant's dispute with the Government over charges for overtime use of his facility has been ongoing for over five years. His failure, until now, to rely on this alleged contract modification establishing an overtime rate and said to have been signed in early 1990 remains unexplained and is puzzling -- to say the least. More importantly, however, we decline to apply the crime- fraud exception for the simple reason that we can find no basis for the alleged crime. Appellant's demand that we apply the crime-fraud exception is premised on the assumption that the contracting officer denies or deliberately hides the fact that she signed the revised SLA No. 20(a). She does not. In her declaration, she states under penalty of perjury that she "has no recollection of signing or executing revised SLA No. 20A." It is no secret that the Government, based on a review of its files and the recollection of other employees, contends that SLA No. 20(a) was not signed. The contracting officer, however, does not go this far. Appellant has incorrectly assumed that she does. Has Waiver Occurred? Appellant contends that respondent, in answering earlier discovery requests, has disclosed privileged information and thus waived the right to withhold any material related to the areas in which partial disclosures have already allegedly been made. In making this argument, appellant relies on two documents. The first is an undated redacted version of a document entitled: "Summary Of Our Review Of The Overtime Issue For The Palmetto Depot, Palmetto, Georgia Under Lease No. 65-04b-28085." This document, referred to by appellant as the "Hagin Summary," is said to have been prepared by Mr. Greg Hagin, a GSA procurement analyst. Mr. Hagin states at the start of the report: The review was made to determine if (i) a binding agreement existed, (ii) what made up the hourly overtime rate per hour, and (iii) what actions the contracting personnel took in the determination of a[n] overtime rate. To meet the objectives of the review, I interviewed the contract specialist, Judy Sekulow; legal counsel, John Ringhausen, and pose[d] questions through Jerry Shadinger for Mr. Layfield, FSS [Federal Supply Service] Ass't Commissioner; We attended meetings between FSS and PBS [Public Buildings Service] personnel; we discussed the access to records and the overtime issue with the lessor, and we reviewed the lease files provided by JI4 and 4PEB. Appellant's Memorandum of Law in Support of its Motion to Compel, Exhibit 4. The Hagin Summary states that at the present time there is not a binding agreement on $400 or any lesser amount for overtime. It also states, however, that the contracting personnel did have a binding agreement but that after inquiries from within GSA, the personnel reopened negotiations and the lessor made another offer. In his summary report, Mr. Hagin also notes that, in reaching agreement with the lessor initially, the leasing personnel violated regulations calling for review within GSA for contracting or cost changes. He also refers to an internal GSA memorandum which states that the position of the regional Office of Counsel is that "no supplemental agreement has been fully exercised-discussions held [sic], but no final agreements reached." This Hagin Summary also states that the contracting officer got approval from 4L (the regional Office of Counsel) to contract for $400 per hour and that the contracting officer "attempted to deny" that agreement had been reached. Upon reopening negotiations, the contracting officer is said to have reached a better agreement of a $295,000 lump sum settlement and to have "repackaged the lease" to provide for full time access. Id. The second document which appellant claims contains privileged information is a memorandum dated April 23, 1990, from the Deputy Director, Real Estate Division, to the Assistant Regional Administrator, FSS. In that memorandum the following statements are made: Many concerns have been raised regarding overtime usage by the Government and reimbursement due the Lessor. GSA Regional Counsel has reviewed this issue and determined that the Lessor is due reimbursement for overtime hours worked by the Government. Discussion with the Inspector General's office confirm Regional Counsel's decision. However, the issue still remains regarding the amount due the Lessor. FSS is hereby put on notice to budget for overtime hours worked since occupancy of March 13, 1989 to the present time. Appellant's Memorandum of Law in Support of its Motion to Compel, Exhibit 7. Appellant contends that the various statements set out above are "replete with disclosures of attorney-client communications and attorney work product." We disagree. The scope of the attorney-client privilege is well defined. Its purpose is to encourage full and frank communications between attorneys and their clients by assuring clients that their disclosures will be held in confidence. The privilege, therefore, protects communications made in confidence by clients to their lawyers for the purpose of obtaining legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Fisher v. United States, 425 U.S. 391, 403 (1976). The privilege is that of the client, not that of the attorney. American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 745 (Fed. Cir. 1987). The privilege, however, only protects disclosure of the communications themselves; it does not protect disclosure of the underlying facts by those who have communicated with the attorney. Upjohn, 449 U.S. at 395. Clients cannot, therefore, claim privilege for facts known to them prior to meeting with counsel simply by communicating these facts to counsel. Id. at 396. The courts have not been of one mind in applying the attorney-client privilege to communications from attorney to client. Our own appellant authority, however, has adopted the clear principle that the privilege does attach to the communications of the lawyer to the client when the communication reveals, directly or indirectly, the substance of a confidential communication by the client. American Standard Inc., 828 F.2d at 745. We have examined in detail the statements which appellant contends to be "replete with disclosures of attorney-client communications." We fail to find among them any direct or indirect disclosure of a confidential communication of a client to counsel. As to the alleged waiver of the attorney work product privilege, we likewise find nothing among the statements relied on by appellant which would constitute such work product. The common law work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3), which provides that documents prepared in anticipation of litigation or for trial by a party or its representative are discoverable only if the party seeking the documents has a substantial need for them and is unable without undue hardship to obtain the substantial equivalent of the documents by other means. Hickman v. Taylor, 329 U.S. 495 (1947); Cities Service Helex, Inc. v. United States, 216 Ct. Cl. 470 (1978); Fed. R. Civ. P. 26(b)(3). We find nothing in the Hagin Summary or in the Memorandum to the Assistant Regional Administrator which would suggest that either document was prepared in anticipation of litigation or for trial. The primary purpose of the Hagin summary is expressly stated at the outset of the report. It is to determine: (i) if a binding agreement existed; (ii) what made up the hourly overtime rate per hour; and (iii) what actions the contracting personnel took in the determination of an overtime rate. The purpose of the memorandum to the Assistant Regional Administrator is simply to advise FSS of the need to budget for overtime use of the facility. If the primary motivating purpose behind the creation of a document is not to assist in pending or impending litigation, then a finding that the document is entitled to work product immunity is not mandated. United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp. Emer. Ct. App. 1985) The Hagin Summary does indeed contain statements and conclusions regarding such matters as the existence of an agreement on an overtime rate, the alleged violation of certain GSA internal regulations by agency personnel, and the involvement of regional Office of Counsel in the initial approval of a $400 rate for overtime. The report also ascribes to the regional Office of Counsel the somewhat cryptic position that no supplemental agreement had been "fully exercised-discussions held." Since Mr. Hagin did consult with the regional Office of Counsel, among several others, presumably some of the information set out in the summary came from that office. We see no reason, however, why we should conclude from this fact alone that the report reveals the mental impressions, conclusions, opinions or legal theories of counsel anticipating and/or preparing for litigation. Presumably the statements and conclusions contained in the summary are to be attributed first and foremost to Mr. Hagin himself. Furthermore, his summary indicates that, notwithstanding management's interest in the facts relating to the overtime issue, negotiations with appellant on an appropriate rate had resumed. Given the role normally played by the regional Office of Counsel in the procurement process, that office's involvement in Mr. Hagin's fact-finding efforts was to be expected. We have seen nothing in the record to date which would suggest that counsel was at this time planning on litigating with appellant. Rather, the regional Office of Counsel appears to have been assisting in a collective agency effort to get to the bottom of a complex situation. If, therefore, any statements in the Hagin Summary are to be attributed to counsel rather than Mr. Hagin himself, they hardly qualify as privileged attorney work product. Moreover, it appears that the analyst prepared the summary in the normal course of business and not at the direction or request of counsel. Our conclusion regarding any admission of liability in the Memorandum to FSS is essentially the same as that reached in analyzing the various statements in the Hagin Summary. The memorandum states that regional counsel, after review of the situation, has concluded that the lessor is due reimbursement for overtime use of the warehouse. This hardly amounts to attorney work product, i.e., a conclusion arrived at in preparation for trial or in anticipation of litigation. The current dispute is not even over whether appellant is entitled to any reimbursement for overtime use of his warehouse, but rather how much he should be paid. In short, we find no disclosure of material in any of the various statements relied on by appellant which would be subject to the attorney-client or attorney work product privileges. Accordingly, we disagree with appellant's contention that these privileges have been waived through the disclosure of information subject to the two privileges. Conceivably, a convincing argument could be made that some of the information already disclosed by respondent and relied on by appellant is subject to the deliberative or executive privilege. This privilege protects agency officials' deliberations, advisory opinions, and recommendations in order to promote frank discussion of legal or policy matters in the decision making process. Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985). If deliberative privilege is claimed, however, it must be supported by an affidavit from the department head or a subordinate official of a high delegated authority specifying with particularity the documents for which the protection is sought and explaining why the documents are privileged. Unisys Corp. v Department of Commerce, GSBCA 12823-COM, 95-2 BCA 27,903, at 132,206, citing United States v. Reynolds, 345 U.S. 1, 7-8 (1953). In this case deliberative privilege has not been asserted by respondent for the documents on which appellant relies in arguing that waiver has occurred and no argument has been made by appellant that the deliberative privilege has been waived. Is the Invocation of Privilege Untimely? Appellant contends that respondent has forfeited its right to object to pending discovery requests, namely, appellant's second request for admissions, third request for production of documents, and third request for interrogatories. Appellant's argument is that respondent filed no objection to this discovery, based on privilege, within fifteen days of receipt. Under Board Rule 15(f)(2) (now 115(f)(2)), a party failing to raise an objection within that period is required to respond fully to the discovery request. Appellant's Memorandum of Law in Support of its Motion to Compel at 30. We find the argument without merit. Respondent's invocation of privilege on the pending discovery requests comes as no surprise to appellant. Objections based on privilege were raised to similar discovery requests served earlier on respondent. Under the circumstances, we consider it reasonable to consider these initial objections as continuing in nature. Appellant's Specific Concerns We turn now to the specific discovery requests of concern to appellant. In reviewing the areas of disagreement, we note a penchant on the part of counsel for respondent to interpret the attorney related privileges in an expansive fashion. Similarly, in reviewing appellant's arguments in support of a claim that respondent has already disclosed privilege information, we detect a tendency to identify information as privileged when in fact it is not. This tendency on the part of counsel is hardly unique. We have often encountered it. Indeed, it was perhaps in reaction to such a tendency that a United States District Court was prompted to write with regard to the attorney-client privilege: [Defendant's] refusal, on asserted privilege grounds, to deliver to [plaintiff] the group of documents that have been furnished to this Court reflects a Pavlovian reaction that anything authored by or sent to someone possessing a J.D. degree is automatically attorney- client privileged. But the mere presence of a lawyer's name at the top or bottom of a document is not the bell that causes the dog named Privilege to salivate. What is entitled to protection is really limited to the communication of confidences from client to lawyer, whether any such confidences (or sometimes the fact that confidences have been communicated) is disclosed in a client-authored document or a lawyer-authored response. Nedlog Co. v. ARA Services, Inc., 131 F.R.D. 116 (N.D.Ill. 1989) In resolving the discovery disputes which are at issue here, we interpret the attorney related privileges strictly in accordance with applicable case law. We urge that counsel, in revisiting the discovery requests in question, do the same. With regard to the discovery requests concerning SLA No. 20 and SLA No. 20(a), appellant states that no written response has been provided to Production Requests Nos. 7 and 10. Respondent has given us no explanation why no reply was provided. The subject matter is within the scope of authorized discovery. Respondent is, therefore, directed to reply to the request. Appellant states that the Government has responded to Production Requests Nos. 13, 16, and 17 by stating that "[s]ubject to prior objections, all such documents have been provided to appellant." Assuming that the objections raised here by respondent are based either on attorney-client privilege or attorney work product privilege, we urge respondent to review its position. The three discovery requests relate to the execution or non-execution of SLA No. 20 and SLA No. 20(a), Ms. Wall's position regarding this issue, and the Government's position regarding liability to appellant for the overtime use of his facility. These are obviously legitimate areas of concern to appellant and are ripe for discovery. Notwithstanding any possible association of the Office of Counsel with documents which may be responsive to these requests, the documents should be provided to appellant unless it is clear that they are subject to privilege. We remind respondent that while client communications are privileged, facts known by the client prior to conferring with counsel are not -- even if they are part of the communication. Upjohn, 449 U.S. at 395. We will, of course, uphold the invocation of privilege if it can be demonstrated that a document withheld discloses directly or indirectly the substance of a confidential communication of a client to counsel for purposes of obtaining legal advice or if it can be demonstrated that the document was clearly prepared in anticipation of litigation. In response to Interrogatory No. 43, the Government has stated that the information sought by appellant is contained in documentation already provided or to be provided to appellant. The Government, however, leaves with appellant the burden of deriving from this documentation the data responsive to appellant's specific requests. Appellant is apparently dissatisfied with this arrangement. In the absence of a more specific showing from appellant, however, we consider respondent's reply satisfactory. Presumably appellant will want to review all the documentation provided. We see no reason why this review cannot be undertaken bearing in mind those areas of particular interest to appellant. In Production Request No. 15, appellant seeks production of all documents relating to reviews by GSA legal counsel of the agency's liability to the lessor in connection with SLA No. 20(a). Since respondent has not invoked deliberative privilege regarding documentation responsive to this request, we direct counsel to produce it unless it can be demonstrated that in so doing counsel will be disclosing the substance of a client's confidential communication to counsel for purposes of obtaining legal advice or it can be demonstrated that the document was clearly prepared in anticipation of litigation. Request for Admission No. 15 seeks to determine whether the regional Office of Counsel reviewed SLA No. 20 prior to the date of that document. To the extent that communications between Government employees and counsel are generated in routine business matters, with no evidence of an expectation of confidentiality on the part of the client, the attorney-client privilege does not apply. Amdahl Corp., GSBCA 7859-P, 85-2 BCA 18,054, at 90,617, (citing Sedco International, S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir.), cert. denied, 459 U.S. 1017 (1982)). Respondent has provided us with no information which would lead us to conclude that an answer to Request for Admission No. 15 would involve privileged information. Indeed, if agency regulations require such a review, the fact that one was made would presumably be a matter of record and hardly involve an expectation of confidentiality. Furthermore, if there was some involvement of counsel with this SLA, this may shed some light on the question of whether or not there was a written agreement or meeting of the minds on an overtime rate. This request should, therefore, be answered. Request for Admission No. 16 asks a similar question regarding review of SLA No. 20(a). Our ruling on this request is the same as that made regarding the review of SLA No. 20. Requests for Admission Nos. 17 and 18 ask a similar question regarding approval (as opposed to review) of the two SLAs. These requests should be answered for the same reason given above regarding the review of these SLAs. Interrogatory No. 68 seeks information concerning the nature of the regional Office of Counsel's involvement in the review of SLA Nos. 20 and 20(a). This request should be answered to the maximum possible extent. Obviously, however, the answer should not disclose any confidential communications from clients made for purpose of seeking legal advice. Interrogatory Nos. 71 and 72 seek to determine the individual within the regional Office of Counsel who reviewed SLA Nos. 20 and 20(a) if they were in fact reviewed. For reasons already stated, these interrogatories should be answered -- as should Interrogatories Nos. 73 and 74, which seek similar information regarding the approval of these SLAs if they were in fact approved. In its privilege log, respondent has listed five documents of GSA's Office of Inspector General said to be subject not only to the attorney-client and attorney work product privileges but to the "deliberative privilege" as well. Appellant's Memorandum of Law in Support of its Motion to Compel, Exhibit 5 at 9. This claim of privilege, however, is unsupported by the requisite affidavit from the department head or a subordinate official of a high delegated authority specifying with particularity the documents for which the protection is sought and explaining why the documents are privileged. In respondent's opposition to appellant's motion to compel, counsel have indicated a willingness to make three of the five documents said to be subject to deliberative privilege available to appellant's counsel under terms of a protective order. Respondent's Opposition to Appellant's Motion to Compel at 11, note 5. We urge counsel for the parties to pursue this possibility. In the event agreement cannot be reached, we will expect counsel for respondent to submit promptly the requisite affidavit in support of the claimed privilege. The remaining two documents for which the deliberative privilege is claimed are notes of telephone conversations between audit personnel and an attorney in the regional Office of Counsel. Presumably counsel for respondent decline to make these materials available even under a protective offer because the documents relate to confidential communications with counsel. If this is in fact the case, then their retention could be justified on the basis of attorney-client privilege alone, and it should be unnecessary to seek a separate justification for any deliberative privilege if the remaining three documents are released subject to a protective order. Of the 120 documents listed in respondent's privilege log, appellant has asked that we examine 65 to determine whether the claim of privilege is justified. We decline to do so. In light of the conclusions reached and the guidance provided in this decision, we believe that an in camera review at this time, without affording counsel for the parties the opportunity to revisit their respective positions on privilege, would be unduly intrusive. Counsel for respondent, therefore, is directed to respond within thirty days of the date of this decision, as directed herein, to appellant's pending discovery requests. If, upon review of the responses received, counsel for appellant believe the replies are inadequate, they may raise their concerns in a subsequent motion to compel. Counsel for appellant also ask that we authorize depositions on the documents and subject areas said to be privileged by respondent and that we instruct counsel for respondent that no objections based on privilege are to be raised. Given our disagreement with counsel over what is actually subject to privilege, we obviously deny the request as made. However, at this point, we urge counsel to begin planning for depositions to be taken at the conclusion of written discovery. It would also be useful to have witnesses review all relevant documentation -- even that which remains privileged -- for purposes of refreshing their recollection of related facts. As already noted, we consider the facts relating to SLA Nos. 20 and 20(a) and the Government's concerns over reimbursement of appellant for overtime use of his facility highly relevant to this case. There is an obvious need for thorough discovery in these and related areas. While the invocation of the attorney-client and/or attorney work product privilege may be necessary from time to time, we remain convinced that, notwithstanding occasional reliance on these privileges, the underlying facts relevant to this case can and should be developed. _____________________ EDWIN B. NEILL Board Judge