796 F.3d 137
D.C. Cir.2015Background
- Barko filed a False Claims Act suit against Kellogg Brown & Root and related entities, seeking documents from KBR's COBC internal investigation.
- KBR asserted the COBC investigation and related documents were protected by attorney-client privilege and work product.
- The District Court ruled that privilege did not attach and/or was impliedly waived, ordering discovery of COBC materials.
- This Court previously granted a writ of mandamus and vacated similar district court orders, directing reconsideration consistent with Upjohn and related precedent.
- The District Court later ordered production under Rule 612 and found an implied waiver, prompting this mandamus petition.
- This court grants the mandamus, vacates the challenged orders, and denies reassignment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 612 balancing governing privilege | Barko; Rule 612 fairness balancing overrides privilege. | KBR; 612 balancing cannot defeat attorney-client/work product protections. | Rule 612 balancing cannot override privilege; error to compel disclosure. |
| Waiver by at-issue disclosure | Barko; no waiver by discussing COBC contents at deposition. | KBR; placement of COBC materials at issue creates implied waiver. | No implied waiver; at-issue reasoning flawed. |
| Appropriate remedy to correct district court errors | Barko; mandamus appropriate to preserve privilege and prevent further harm. | KBR; reconsideration or appeal suffices. | Writ of mandamus granted; district orders vacated. |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (Supreme Court 1981) (attorney-client privilege protects core communications in internal investigations)
- Swidler & Berlin v. United States, 524 U.S. 399 (Supreme Court 1998) (rejects balancing test defining privilege scope)
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (mandamus to preserve privilege in internal investigations)
- United States ex rel. Barko v. Halliburton Co., 37 F. Supp. 3d 1 (D.D.C. 2014) (district court decision on privilege and discovery in internal investigation)
- Sealed Case (general counsel’s files), 676 F.2d 793 (D.C. Cir. 1982) (limits on waiver when privilege is abused)
- Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007) (waiver analysis tied to placing materials at issue)
- White v. United States, 887 F.2d 267 (D.C. Cir. 1989) (general assertion of privilege does not waive)
- In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (principles on not using privilege to manipulate truth-seeking process)