Are Internal Compliance Investigations Privileged? D.C. District Court Rules No

This post was written by Lawrence S. Sher, Joesph W. Metro and Erin E. Atkins.

We want to alert our readers to a recent decision out of the U.S. District Court for the District of Columbia.

  • U.S. District Court for the District of Columbia holds documents related to internal investigations of possible violations of corporate code of conduct not protected from disclosure under either attorney-client privilege or attorney work product doctrine
  •  Ruling serves as timely reminder for companies in a wide variety of industries to review internal procedures relating to internal corporate compliance program or code of conduct investigations to maximize the likelihood that appropriate privileges will be honored

On March 6, 2014, the United States District Court for the District of Columbia granted a qui tam relator’s motion to compel the production of documents relating to the defendant Kellogg Brown & Root Services, Inc.’s (“KBR’s”) “Code of Business Conduct (“COBC”) investigations,” holding such documents were not protected from disclosure under either the attorney-client privilege (“ACP”) or the attorney work product doctrine (“AWP”). The court concluded that the company’s investigations were conducted pursuant to “regulatory law and corporate policy,” rather than for the purpose of obtaining legal advice. Accordingly, KBR was ordered to produce some 89 documents that it previously claimed as privileged under the ACP and/or AWP. U.S. ex rel Barko v. Halliburton Company, No. 1:05-CV-1276 (D.D.C., March 6, 2014). The court’s broader statements could have significant implications for companies in regulated industries where corporate compliance programs are commonplace, or even required.

Click here to read the issued Client Alert.

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