Upjohn Upheld: D.C. Circuit Re-Affirms Privilege Protections for Multi-Purpose Internal Investigations

In one of the most important decisions of the year for corporate legal departments, on June 27, the D.C. Circuit held that a company’s internal investigation documents were protected by the attorney-client privilege where “one of the significant purposes” of the investigation was “to obtain or provide legal advice.”1 The issue was before the D.C. Circuit on Kellogg Brown & Root’s (“KBR”) petition for a writ of mandamus seeking review of a surprising decision in which the District Court had ordered KBR to produce final reports documenting its prior internal investigations. While corporate legal departments breathe a collective sigh of relief, this case underscores the need to structure internal investigations thoughtfully in order to maximize attorney-client privilege protection.

FACTUAL AND PROCEDURAL BACKGROUND -

In 2005, Harry Barko, who worked for KBR, filed a whistleblower complaint under seal pursuant to the qui tam provisions of the False Claims Act. The complaint alleged that KBR, a former subsidiary of Halliburton, defrauded the federal government by inflating costs and accepting kickbacks while performing reconstruction contracts in Iraq. The complaint remained under seal until 2009.

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Topics:  Attorney-Client Privilege, Compliance, False Claims Act, Internal Investigations, Kellogg Brown & Root, Upjohn Warnings, Work-Product Doctrine

Published In: Civil Procedure Updates, General Business Updates, Government Contracting Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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