Piercing Privilege With “Reasonable Basis To Believe”

A federal contractor maintains he talked to attorneys about ensuring compliance and those communication should be privileged, but the Court of Appeals for the First Circuit didn’t buy it. Attorneys from Dorsey & Whitney look at a case where a contractor is alleged to have used military veterans as fronts for his company in order to win set-aside contracts. The First Circuit has ruled that the prosecution should be able to access the contractor’s communications with both company attorneys and his own personal counsel, on the grounds there is a “reasonable basis to believe” that he was engaged in or planning fraud when they took place. That is a “relatively low bar,” the authors note, and they warn that given the government’s interest in ferreting out waste, fraud and abuse in contracting, this scenario is likely to be repeated.