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It's Superman(damus)! D.C. Circuit Rescues Internal Investigation Materials from Disclosure


In a closely watched case that threatened to "eradicate the attorney-client privilege for internal investigations conducted by businesses that are required by law to maintain compliance programs," the D.C. Circuit in In re Kellogg Brown & Root, Inc. (Jun. 27, 2014), issued a writ of mandamus and vacated a lower court's discovery order compelling KBR to produce investigative reports prepared during an internal investigation. Rejecting the lower court's application of a but-for test for determining if the privilege applies and relying on an article written by C&M's Andy Liu, Gail Zirkelbach, and Jonathan Cone, How To Protect Internal Investigation Materials From Disclosure, 56 Government Contractor ¶ 108 (Apr. 9, 2014), the court held that the privilege applies as long as "one of the significant purposes of the internal investigation was to obtain or provide legal advice" – even if it was not the sole purpose – regardless of whether the investigation was conducted under "a compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy."

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Gail D. Zirkelbach
Partner – Los Angeles
Phone: +1 213.443.5549