D.C. Circuit Upholds Protection of Attorney Client Privilege in Internal Investigations Conducted Pursuant to Regulatory Mandate

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In a widely anticipated decision, the D.C. Circuit granted a writ of mandamus and vacated a district court order requiring the production of a company's internal investigation documents presumed to be protected by the attorney client privilege. See In re Kellogg, Brown & Root, Inc., No. 14-5505 (D.C.Cir. June 27, 2014). The district court order made a company’s internal investigation documents fair game in litigation, in part, because federal regulations required the company to maintain a compliance program and to investigate potential misconduct.  Under this order, the attorney client privilege did not apply because the "primary purpose" of the communication was not to obtain or provide legal advice because the communication would not have been made "but for" the fact that legal advice was sought. The D.C. Circuit found clear error in this reasoning. The Circuit clarified the "primary purpose" test to mean that as long as "one of the significant purposes" of the communication was to obtain or provide legal advice, then the privilege would apply. Significantly, the Circuit also made clear that this privilege could apply regardless of whether "an internal investigation was conducted pursuant to a company's compliance program required by statute or regulation, or was otherwise  conducted pursuant to a company's compliance policy." 

In re Kellogg, Brown & Root, Inc., No. 14-5505 (D.C.Cir. June 27, 2014)

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