Background - News & Events (Landing) 2016

Search NewsRoom

Advanced Search >

Media Contacts +

All Alerts & Newsletters

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."

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

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