In United States ex rel. Minge v. TECT Aerospace, Inc. et al., Case No. 07-1212-MLB, Relators filed a False Claims Act lawsuit on behalf of the United States against defense contractors, alleging that the defendants manufactured aircraft parts with a “defective process” and were liable under the FCA for violations of express and implied certifications. Relators withheld certain documents during discovery claiming that the documents were protected from disclosure under the work product protection of Fed.R.Civ.P. 26(b)(3) and the “common interest doctrine.” Defendant Hawker Beechcraft Corporation moved to compel and the court found that the work product and common interest doctrines were not as far-reaching as Relators claimed, holding that certain communications from Relators to Government agents and attorneys were not protected work product and that Relators had no standing to object to the disclosure of the Government’s work product.

As the court stated, Fed.R.Civ.P. 26(b)(3) “restricts otherwise discoverable documents prepared ‘in anticipation of litigation’ by or for a party or its representative.” The privilege, however, is not absolute. Under Fed.R.Civ.P. 26(b)(3), a party may obtain work product documents if the documents are otherwise discoverable, the party has a “substantial need” for them, and the equivalent documents cannot be obtained by other means without “undue hardship.” But, the mental impressions and opinions of the party’s attorney and other party representatives are protected from disclosure. The common interest doctrine is not a separate privilege, “but rather an exception to the waiver of a privilege.” Two parties that share a common legal interest can “openly share privileged information without risking the waiver of the privilege.”

Relators withheld e-mails and communications with the Government as protected attorney work product documents. Relators argued that the common interest doctrine protects from disclosure both their work product, as well as the Government’s work product. However, the Court reasoned that the doctrine does not “create an attorney-client privilege between Government counsel and Relators” and “does not empower Relators to assert protections on behalf of the Government.” The court, therefore, held:

Communications from the individual Relators to Government agents or attorneys are not shown to be within the protection of Rule 26(b)(3)(A). Even if they are, Defendant has a substantial need for these documents.

Communications from Government agents and representatives to the individual Relators (or to each other) are not within the protection of Rule 26(b)(3), at least as to the Relators. The Relators do not have standing to assert those protections on behalf of the Government.