Last month, for the second time, the D.C. Circuit in In re Kellogg Brown & Root Inc., No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), granted a writ of mandamus sought by KBR and vacated a series of district court orders that would have compelled KBR to turn over key documents from an internal investigation to a plaintiff who filed a whistleblower complaint pursuant to the qui tam provisions of the False Claims Act. While the principles of attorney-client privilege set forth by the U.S. Supreme Court in its seminal decision in Upjohn Company v. United States, 449 U.S. 383 (1981), were ultimately upheld by the D.C. Circuit, the KBR saga serves as a stark reminder that documents from internal investigations may ultimately end up subject to production in litigation because a court finds either that the privilege has been waived, or that the privilege did not apply in the first place.

Ultimately, a company should take appropriate steps to protect the privilege not only at the outset of an investigation, but also at each subsequent inflection point, in order to best position the company to establish that the investigation is entitled to privilege protection.

Originally published in Law360, New York on September 28, 2015.