D.C. Circuit Again Protects Attorney-Client Privilege Over Internal Investigation Materials

On August 11, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued its second writ of mandamus in the same action to vacate the District Court’s order requiring the disclosure of privileged materials. The decision came in In re Kellogg, Brown & Root, Inc., No. 14-5319, where plaintiff and whistleblower Harry Barko alleged that the defendant defense contractor falsely billed and paid kickbacks related to Iraq War subcontracts. Previously, the District Court ordered that KBR must turn over 89 reports created in KBR’s internal investigation of possible False Claims Act violations. In June 2014, the D.C. Circuit issued its first writ of mandamus, reversing the District Court’s order. In that opinion, the D.C. Circuit held that because providing legal advice was one reason the investigation reports were created, attorney-client privilege protected their disclosure even if the company had additional, overlapping reasons to create the reports, such as