Court Broadens Confidentiality of Investigations - D.C. Circuit extends privilege in internal corporate probes, but inconsistent rulings remain

You are counsel to a government contractor that is conducting an internal investigation into possible fraud. Federal mandatory disclosure obligations require an investigation, as does the need to gather facts to seek legal advice. Is the investigation privileged? The U.S. Court of Appeals for D.C. Circuit recently answered with a resounding “Yes.”

In In re Kellogg Brown & Root, the D.C. Circuit provided a new test for the applicability of the attorney-client privilege to internal investigations. In welcome news for corporate counsel, the court unanimously rejected the district court’s holding that a communication is privileged only if it would not have been made “but for” the purpose of seeking legal advice.

Originally published in The National Law Journal on August 14, 2014.

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