For the second time in two years, the U.S. Court of Appeals for the District of Columbia Circuit, in an important attorney-client privilege case, has issued a Writ of Mandamus to protect the contents of an internal corporate investigation that was led by the company’s lawyers. The case is In Re: Kellogg Brown & Root, Inc., et al.
In the first KBR decision, reported at 756 F. 3d 754 (2014), the Court of Appeals granted the writ and vacated the district court’s order to produce key documents from this investigation. The case was returned to the district court to determine if there existed other grounds to compel the disclosure of these documents. The Court of Appeals also denied KBR’s request that the case be assigned to another judge. In November and December 2014, the district court judge held that neither the attorney-client privilege nor the attorney work product doctrine protected these documents, as the district court found that KBR had, in effect, waived these privileges. KBR again filed a petition requesting that a Writ of Mandamus be issued to protect its internal investigation from compelled disclosure. On August 11, 2015, in a unanimous decision, the Court of Appeals granted the writ.
In the second KBR decision, decided on June 27, 2014, the Writ of Mandamus involves the prosecution of a False Claims Act allegation; KBR is a government contractor, and the plaintiff, Harry Barko, alleged that KBR and other government contractors had defrauded the United States government when engaged in administering military contract in Iraq. KBR advised the district court that, as a government contractor, it was subject to the “Anti-Kickback Act,” which requires disclosure of possible violations to Department of Defense after it conducts its own internal investigation led by the company’s lawyers.
KBR has always treated its internal investigation as privileged, yet Barko asked the district court to compel the disclosure of certain documents in this internal investigation. In a second reversal of the district court, the Court of Appeals held that the orders issued by the district court were “squarely contrary” to the Supreme Court’s 1981 ruling in Upjohn Co., et al., v. U.S., 449 US 383 (1981). It stressed, “as the Supreme Court did in Upjohn, that the attorney-client privilege ‘only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.'” It confirmed that “Barko was able to pursue the facts underlying KBR’s investigation. But he was not entitled to KBR’s own investigation files.“
The Court of Appeals denied KBR’s request that the case be assigned to another judge; it concluded that the district court was trying its best to resolve a decade-long litigation, and “we have no reason to doubt that the District Court will render fair judgment in further proceedings.”