Last week's Privilege Point discussed the D.C.
Circuit's refusal to order disclosure of privileged
communications a Rule 30(b)(6) deponent reviewed before testifying.
In re Kellogg Brown & Root, Inc., No. 14-5319, 2015
U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015). The D.C.
Circuit's other holding rejected plaintiff's argument that
defendant KBR triggered an "at issue" waiver.
In a memorandum supporting its summary judgment motion, KBR
wrote a lengthy footnote noting that the company investigates
claims of possible illegal conduct, and reports to the government
if the investigation uncovers any. Id. at *6-7. The
footnote then stated that KBR conducted an investigation into
plaintiff's allegations, but it did not make any reports to the
government. The plaintiff argued that KBR had placed "at
issue" (and therefore must produce) the underlying
investigation documents – by inferring that its investigation
did not uncover any illegal conduct. Perhaps sensing that
