A recent decision by a federal district court raises concerns about the ability of companies to claim privilege over the results of internal investigations. In United States ex rel. Harry Barko v. Halliburton Company, et al., No. 1:05-CV-1276 (D.D.C. Mar. 6, 2014) (Doc. 150), Judge James G. Gwin of the United States District Court for the District of Columbia granted the plaintiff-relator’s motion to compel production of materials that had been created by the defendants in connection with internal investigations of possible misconduct. This Alert analyzes the rationale behind Judge Gwin’s decision, notes the pitfalls identified by Judge Gwin, and assesses the potential impact of the decision on the ability of companies to claim privilege over materials generated in connection with internal investigations.

Case Background -

Harry Barko was an employee of Halliburton in Iraq in 2004 who claimed to have discovered abuses of the government contracting process. Barko brought a qui tam action under the False Claims Act against his former employers and several related companies. During discovery, the defendants attempted to withhold documents created in connection with internal investigations into alleged violations of the companies’ Code of Business Conduct (“COBC”). The investigation was conducted by non-attorney investigators who interviewed personnel, reviewed relevant documents, obtained witness statements, and drafted a COBC Report that was then transmitted to the Law Department. The challenged documents contained significant admissions and findings of misconduct, which Judge Gwin characterized as “eye-openers” following an in camera review.