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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Topics:  Attorney-Client Privilege, Chief Compliance Officers, Compliance, Disclosure Requirements, False Claims Act, Federal Contractors, Fraud, Internal Investigations, Kellogg Brown & Root, Work Product Privilege, 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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