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Applicability of Privilege to Internal Investigations Upheld, Again

August 12, 2015

In a decision preserving the strength of the attorney-client privilege, the D.C. Circuit in U.S. ex rel. Barko v. Halliburton once again vacated an order from the district court requiring KBR to produce attorney-client privileged documents created during an internal investigation. Specifically,  the D.C. Circuit granted mandamus based on the "clear and indisputable error" in the findings that (1) KBR had waived  the privilege under Rule 612 by allowing a non-lawyer, Rule 30(b)(6) witness to review the investigation  report during deposition preparation; and (2) KBR had put the investigation report into issue by mentioning the company's "investigative mechanism" in a motion for summary judgment.

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Brian Tully McLaughlin
Partner – Washington, D.C.
Phone: +1.202.624.2628
Derek A. Hahn
Partner – Los Angeles, Orange County
Phone: +1.213.622.4750, +1.949.263.8400