DC Circuit Reaffirms Confidentiality Of Internal Investigation Communications

For the second time in 14 months, the US Court of Appeals for the DC Circuit has taken the extraordinary step of issuing a writ of mandamus to stop a federal district court from requiring a federal government contractor to produce internal investigation documents that are protected by the attorney-client privilege. Both writs were issued in the same case, a False Claims Act qui tam suit brought by a relator who alleges that the contractor, which assisted the US military in Iraq, defrauded the government. This decision confirms that when an internal investigation is begun and completed by in-house counsel and is in compliance with requirements to establish and protect the attorney-client privilege, the documents remain privileged despite careful collateral uses.

The contractor's internal investigation had been conducted in accordance with its Code of Business Conduct and overseen by its legal department. Finding that documents relating to the internal investigation were not attorney-client privileged, a DC federal district court compelled production. The contractor filed a petition for writ of mandamus, which the DC Circuit granted in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), on the ground that the district court's document production order conflicted with Upjohn Co. v. United States, 449 U.S. 383 (1991) (holding that confidential employee communications made during an internal investigation led by in-house lawyers are protected under the attorney-client privilege). An article written by Dentons appellate litigation partner Lawrence S. Ebner, "Protecting Privileged Internal Investigation Communications," discusses the DC Circuit's 2014 ruling and its significance to in-house counsel.

On remand, the district court held that the contractor had impliedly waived the attorney-client privilege (and work-product doctrine) for the same internal investigation documents. The district court again compelled their production, the contractor again filed a petition for writ of mandamus, and on August 11, 2015, the DC Circuit again issued a writ of mandamus vacating the document production order. See In re Kellogg Brown & Root, Inc., No. 14-5319 (click here to read the DC Circuit's opinion). The court of...