MARK E. HANSON, Esq. v.  United States Agency for International Development

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MARK E. HANSON, Esq.,
Plaintiff-Appellant,
v. No. 03-2305 
UNITED STATES AGENCY FOR
INTERNATIONAL DEVELOPMENT,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-03-289-A)
Argued: May 5, 2004
Decided: June 16, 2004
Before WILKINSON and WILLIAMS, Circuit Judges, and
Bobby R. BALDOCK, Senior Circuit Judge of the
United States Court of Appeals for the Tenth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Williams and Senior Judge Baldock joined.
COUNSEL
ARGUED: Jonathan David Shaffer, SMITH, PACHTER,
MCWHORTER & ALLEN, Vienna, Virginia, for Appellant. Steven
E. Gordon, Assistant United States Attorney, OFFICE OF THE

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UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria,
Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Attorney Mark E. Hanson represents a contractor embroiled in a
construction dispute concerning a USAID-funded project in Egypt.
Hanson claims that the United States Agency for International Devel-
opment ("USAID") unlawfully withheld a document relevant to the
dispute in violation of the Freedom of Information Act ("FOIA").
This document, prepared by a lawyer hired by the private project
engineer, laid out the lawyer’s analysis concerning the dispute that
was of common interest to USAID and to the project engineer. The
lawyer’s contract with the project engineer expressly provided that
only USAID and its Egyptian partner should receive the document.
Hanson argued that the document was subject to FOIA disclosure.
The district court granted summary judgment to USAID and held that
the document fell under the FOIA exemption for attorney work prod-
uct prepared in anticipation of litigation. We affirm that judgment.
While FOIA exists to facilitate greater government transparency, the
government has as much right to undisclosed legal advice in anticipa-
tion of litigation as any private party.
I.
Appellee USAID is a federal agency that finances and oversees
development projects in foreign countries under the government’s for-
eign assistance program. See 22 U.S.C. § 2151 et seq. USAID’s
responsibilities include carrying out development activities in Egypt.
See 22 U.S.C. § 2346. One of USAID’s projects was the construction
of a system of water and sewage treatment facilities for the Aswan
cities in Upper Egypt. While USAID financed the project, the
National Organization for Potable Water and Sanitary Drainage
("NOPWASD") served as the Egyptian government’s agency imple-
menting the project.
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In 1995 USAID retained the engineering firm Camp Dresser &
McKee International, Inc. ("CDM") to design the waste and sewage
treatment facilities and to provide construction, administration and
management services for the project. In 1998 following a competitive
bidding process, NOPWASD awarded the construction contract to
build CDM’s design to a joint venture between Contrack Interna-
tional, Inc. and Morrison Knudsen International, Inc. (the "JV"). The
JV’s contract conformed with USAID’s Host Country Contracting
Mechanism. Under this framework, construction firms directly con-
tract with the implementing agency of the host government, while
USAID retains certain approval rights, including the right to approve
material changes to the contract, such as the level of compensation.
In September 2000, the JV asked NOPWASD for an additional $38
million to compensate for time delays. In April 2001, CDM in its
capacity as project engineer evaluated the JV’s request and found that
the compensation should be substantially lower. CDM and the JV met
several times, yet failed to resolve the dispute. In May 2001 at
USAID’s urging, CDM hired Richard J. Roy of Roy & Associates as
a neutral third party to evaluate the negotiation process, the parties’
positions, and the impediments to settlement. Roy’s contract provided
that he was to provide a final report ("Roy Report") of his findings
to NOPWASD and USAID. Roy’s contract neither permitted nor pro-
vided for disclosure to any other party. The construction dispute still
has not been resolved, and the JV has threatened to sue USAID and
CDM to secure the compensation to which it claims entitlement.
Appellant Mark Hanson is a partner in the law firm representing
one of the JV members. In February, 2002, Hanson filed a FOIA
request with USAID requesting the disclosure of a number of docu-
ments related to the dispute, including the Roy Report. USAID pro-
duced most of these documents, but refused to produce the Roy
Report on the grounds that it fell under the deliberative process and
attorney work-product privileges of 5 U.S.C. § 552(b)(5).
Hanson filed suit in district court claiming that USAID had unlaw-
fully withheld the Roy Report. The district court granted USAID’s
motion for summary judgment and ruled that the withheld document
was exempt from disclosure under 5 U.S.C. § 552(b)(5), because it
constituted attorney work product prepared in anticipation of litiga-
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tion. Although Roy voluntarily released a draft of his report to the JV
during the course of the FOIA litigation, the district court held that
USAID had not authorized Roy to do this and thus had not waived
its right to claim the FOIA exemption. Hanson appealed the district
court’s decision to this court.
II.
The question of whether a district court properly granted the gov-
ernment summary judgment in a FOIA action is one of law which we
review de novo. Ethyl Corp. v. U.S. E.P.A., 25 F.3d 1241, 1246 (4th
Cir. 1994). FOIA provides that, subject to certain statutory exemp-
tions, federal agencies shall "upon any request for records which rea-
sonably describe such records . . . make the records promptly
available to any person." 5 U.S.C. § 552(a)(3)(A) (2000). "The basic
purpose of FOIA is to ensure an informed citizenry, vital to the func-
tioning of a democratic society, needed to check against corruption
and to hold the governors accountable to the governed." N.L.R.B. v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
Nonetheless, FOIA specifies nine exemptions from its general dis-
closure provisions. 5 U.S.C. § 552(b). These exemptions are designed
to safeguard various public interests against the harms that would
arise from overbroad disclosure. In general, FOIA exemptions should
be narrowly construed to favor disclosure. Bowers v. U.S. Dept. of
Justice, 930 F.2d 350, 354 (4th Cir. 1991). The burden of demonstrat-
ing that a requested document falls under an exemption rests on the
government. City of Virginia Beach, VA v. U.S. Dep’t of Commerce,
995 F.2d 1247, 1252 (4th Cir. 1993); 5 U.S.C. § 552(a)(4)(B). The
government can meet this burden by describing the withheld material
with reasonable specificity and explaining how it falls under one of
the enumerated exemptions. Miscavige v. I.R.S., 2 F.3d 366, 367-68
(11th Cir. 1993). As a general rule, these and all other FOIA determi-
nations should be resolved on summary judgment. Id. at 369.
The relevant exemption here is Exemption 5. Exemption 5 provides
that FOIA disclosure rules do not apply to "inter-agency or intra-
agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency." 5 U.S.C.
§ 552(b)(5). Courts have interpreted Exemption 5 to exclude from
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disclosure documents produced under the attorney work product doc-
trine and the deliberative process privilege. N.L.R.B. v. Sears, Roe-
buck & Co., 421 U.S. 132, 149-50 (1975).
III.
To determine whether the district court properly found that USAID
could withhold the Roy Report under Exemption 5, we consider three
issues. First, we must analyze whether USAID enjoyed an attorney-
client relationship with Roy, such that the attorney-client privilege
would even apply to communications between them. See Upjohn Co.
v. United States, 449 U.S. 383, 389 (1981). Second, we must deter-
mine whether the Roy Report fell under the attorney work product
exemption to FOIA. See 5 U.S.C. § 552(b)(5). Third, we must con-
sider whether Roy’s unilateral release of the report to the JV
amounted to a waiver of this privilege. See In re Doe, 662 F.2d 1073,
1079 (4th Cir. 1981). We shall examine each of these issues in turn."
A.
The attorney-client privilege is "the oldest of the privileges for con-
fidential information known to the common law." Upjohn, 449 U.S.
at 389. The Supreme Court has long recognized that the attorney-
client privilege merits special protection "to encourage full and frank
communication between attorneys and their clients and thereby pro-
mote broader public interests in the observance of law and administra-
tion of justice." Id. at 389. Thus, "if a party demonstrates that
attorney-client privilege applies, the privilege affords all communica-
tions between attorney and client absolute and complete protection
from disclosure." In re Allen, 106 F.3d 582, 600 (4th Cir. 1997). This
privilege protects "not only the giving of professional advice to those
who can act on it but also the giving of information to the lawyer to
enable him to give sound and informed advice." Upjohn, 449 U.S. at
390.
Here Hanson challenges the existence of an attorney-client rela-
tionship. He asserts that no attorney-client relationship exists because
Roy was not retained as a lawyer, but rather as a construction consul-
tant to observe the dispute negotiations. But the incontrovertible fact
of this case is that Roy is indeed a lawyer. Roy was educated as an
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engineer and had extensive experience in many facets of the construc-
tion industry. But Roy’s brochure also held him out to be a lawyer
with a degree from Tulane Law School. The brochure further laid out
Roy’s memberships in multiple state bars and other bar organizations.
It underscored his extensive experience in dispute resolution and
other law-related tasks, noting that "as a member of the American
Arbitration Association he has arbitrated and mediated over 150 dis-
putes, resolving hundreds of millions of dollars in claims." It is clear
that Roy both advertised himself and was hired by CDM as a lawyer
who could bring both his legal skills and construction expertise to the
job.
That unique combination of skills was likely why Roy was retained
in the first place. It is hardly uncommon for lawyers to possess a facil-
ity or expertise in some other discipline. That doesn’t mean they are
any less lawyers. So long as Roy was being asked to exercise his
extensive legal skills, his engineering experience does nothing to dis-
qualify him as an attorney. The view that a lawyer may be only that
— and nothing more — is too insular for an interconnected world.
Hanson claims that, even if any attorney-client privilege exists, the
privilege would extend only to Roy’s relationship with CDM and not
to USAID. Hanson emphasizes that CDM is a private contractor who
hired Roy and that CDM is not even a party in the FOIA litigation.
In contrast, he argues USAID had no contract with Roy, and it was
CDM’s contract with Roy that shaped the contours of any information
that Roy gave USAID. Therefore, Hanson asserts that CDM’s poten-
tial claims to an attorney-client relationship with Roy are irrelevant
here, because USAID had no such relationship with Roy.
Courts have established rules as to when the attorney-client privi-
lege may apply to multiple parties. Described "‘as an extension of the
attorney client privilege,’" United States v. Aramony, 88 F.3d 1369,
1392 (4th Cir. 1996) (quoting United States v. Schwimmer, 892 F.2d
237, 243 (2d Cir. 1989)), the common interest doctrine applies when
two or more parties consult or retain an attorney concerning a legal
matter in which they share a common interest. Sheet Metal Workers
Int’l Ass’n v. Sweeney, 29 F.3d 120, 124 (4th Cir. 1994); see also
Cavallaro v. United States, 284 F.3d 236, 249-50 (1st Cir. 2002). In
this context the communications between each of the clients and the
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attorney are privileged against third parties, and it is unnecessary that
there be actual litigation in progress for this privilege to apply. Ara-
mony, 88 F.3d at 1392.
USAID and CDM were both united by a common interest in
resolving the construction dispute on favorable terms, and both
received counsel on this matter from Roy. In fact, CDM hired Roy at
the urging of USAID in order to resolve the financial dispute with the
JV. CDM asked Roy to provide legal analysis and recommendations
concerning the negotiations. But CDM’s contract with Roy expressly
provided that he would be submitting his final report to NOPWASD
and USAID. Moreover, USAID funded the work of both CDM and
NOPWASD and would eventually have to pay additional compensa-
tion that the JV would receive from a settlement. Thus, while CDM
entered into the contract with Roy, USAID is clearly a real party in
interest in the dispute. CDM and USAID shared a common interest
and received common counsel from Roy on the matter. It is clear,
then, that USAID had an attorney-client relationship with Roy and
that confidential communications between Roy and USAID may be
subject to the attorney-client privilege.
B.
Having established that USAID had an attorney-client relationship
with Roy, we turn now to the question of whether the attorney work
product exemption applies to the Roy Report. Exemption 5 of FOIA
provides that FOIA disclosure rules do not apply to "inter-agency or
intra-agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the agency."
5 U.S.C. § 552(b)(5). This exemption has been found to include docu-
ments protected under the attorney work product doctrine. Sears, 421
U.S. at 149.
To be considered attorney work product, a document must have
been "prepared by an attorney in contemplation of litigation which
set[s] forth the attorney’s theory of the case and his litigation strat-
egy." Id. at 154. The exemption serves to provide a "‘zone of privacy’
within which to think, plan, weigh facts and evidence, candidly evalu-
ate a client’s case, and prepare legal theories." Coastal States Gas
Corp. v. Dept. of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). The
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attorney work product exemption includes factual information pre-
pared by an attorney in anticipation of litigation. Martin v. Office of
Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987).
Hanson emphasizes Roy’s disclaimer that he was not acting in a
legal capacity and his subsequent affidavit to that effect. But we must
judge a tree by its fruit. See In Re Allen, 106 F.3d at 603. It is obvious
that Roy is a lawyer, and it is equally clear that Roy’s work involved
the direct application of his legal skills. He monitored settlement
negotiations, exercised legal judgment in assessing the positions of
the parties, recommended a settlement amount for the dispute, and
advised USAID on how it should change the dynamics of the negotia-
tion process. Roy was specifically asked to review the relevant con-
tract documents between CDM and USAID and between the JV and
NOPWASD. He had to "sift[ ] through the facts with an eye to the
legally relevant." In re Allen, 106 F.3d at 602 n.9 (internal quotations
omitted). These are all the types of things that lawyers do. Roy even
signed the Roy Report with the letters J.D. following his name, which
clearly reinforced the message that he was acting in his legal capacity.
Roy’s legal analysis was also plainly performed in anticipation of
litigation, a prospect not unknown to the construction industry. Roy’s
assessments of the party’s respective positions, his analysis of the
cause of the project delays, and his recommendation of an appropriate
settlement amount all constitute legal analysis in anticipation of litiga-
tion. The fact that Roy’s contract called for him to submit his final
report only to NOPWASD and USAID further suggests that the report
was confidential counsel, intended to prepare the parties for potential
lawsuits. As the district court put it: "[t]he Roy Report is properly
protected pursuant to the work product doctrine because it was pre-
pared by a consultant attorney for a USAID financed project, it con-
tains the attorney’s analyses, opinions and recommendations and was
prepared in anticipation of litigation." The district court properly held
that the Roy Report fell under the FOIA attorney work product
exemption and granted summary judgment to USAID.*
*Although the district court resolved this issue by holding the report
was attorney-work product prepared in anticipation of litigation, USAID
also claimed the Roy Report fell under the deliberative process privilege
afforded by FOIA Exemption 5. We need not address this alternative
ground in order to affirm the district court’s decision.
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C.
Hanson claims finally that the attorney work product exemption
was waived when Roy disclosed a draft of his report to Hanson. Han-
son alleges that in September, 2001, Roy agreed to set aside a copy
of his report for the JV, if the JV should request it. In late 2002 or
early 2003, another official from the JV asked Roy for his report,
which Roy sent at that time. Hanson asserts that he initially believed
this copy was only a preliminary draft, but in August 2003 he found
out that this was an unsigned copy of the final Roy Report. This dis-
closure forms the basis of Hanson’s claim that USAID’s claim to
FOIA Exemption 5 has been waived. This point is important because
it may affect future uses to which the report may be put.
A client can waive an attorney-client privilege expressly or through
his own conduct. In re Grand Jury Proceedings, 727 F.2d 1352,
1355-56 (4th Cir. 1984). Implied waiver occurs when a party claiming
the privilege has voluntarily disclosed confidential information on a
given subject matter to a party not covered by the privilege. Sweeney,
29 F.3d at 125. However, an attorney may not unilaterally waive the
privilege that his client enjoys. "[T]he ability to protect work product
normally extends to both clients and attorneys, and the attorney or the
client, expressly or by conduct, can waive or forfeit it, but only as to
himself." In re Doe, 662 F.2d at 1079 (emphasis added) (internal cita-
tion omitted).
Roy’s unilateral disclosure of the Roy Report thus tells us nothing
about whether USAID has waived its right to withhold the Roy
Report. Roy as an attorney could not waive USAID’s right without
USAID’s consent. Here the district court properly held that the fact
USAID had not authorized Roy to disclose the report meant that
USAID had not waived Exemption 5 of FOIA. In fact, Roy’s contract
with CDM expressly stated that Roy was to send the report only to
NOPWASD and USAID. Hanson fails to point to any conduct by
USAID, NOPWASD, or CDM that suggested that they intended to
waive their attorney work product exemption.
IV.
The government has the same right to undisclosed legal advice in
anticipation of litigation as any private party. And there is nothing in
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FOIA that prevents the government from drawing confidential coun-
sel from the private sector. Allowing disclosure here would impair an
agency’s ability to prepare effectively for litigation with private par-
ties and thereby thwart its ability to discharge its functions in the pub-
lic interest. Accordingly, we affirm the district court’s judgment.
AFFIRMED
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