United States Ex Rel. Barko v. Halliburton Co.
4 F. Supp. 3d 162
D.D.C.2014Background
- KBR challenged the March 6, 2014 order compelling production of 89 COBC documents; documents were deemed ordinary business records created to satisfy defense contractor requirements, not to obtain legal advice.
- The court concluded the COBC documents were not protected by attorney-client privilege or work-product doctrine.
- KBR sought certification for interlocutory appeal under 28 U.S.C. §1292(b) or a stay pending appellate review; alternatively, a mandamus stay was requested.
- The court found no new legal question or special consequence requiring immediate appellate review and denied certification.
- The court also denied a stay, ordered production by March 17, 2014, and directed handling of produced documents under seal or with controlled disclosure.
- The court considered and rejected arguments that KBR had waived privilege by placing COBC documents at issue and by relying on those documents in summary judgment materials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interlocutory appeal certification under §1292(b) | Barko opposes expansive delay and argues appeal not warranted | KBR seeks immediate appellate review of the privilege ruling | Denied the certification for interlocutory appeal |
| Waiver of attorney-client privilege/work-product | KBR may have waived by relying on COBC documents to support rulings | Privilege not waived; documents protected | Court finds potential waiver; no substantial ground to certify appeal on waiver issue |
| Motion to stay the March 6 order pending appeal | Delaying production would avoid burden and preserve trial integrity | Stay is necessary to avoid irreparable harm | Denied the stay; production ordered by March 17, 2014 |
| Motion to seal the March 6 opinion and order | Sealing protects sensitive information and privilege concerns | Strong public access interests; no compelling privacy factors | Denied the sealing motion |
Key Cases Cited
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (U.S. 2009) (interlocutory appeals require a controlling question of law and substantial grounds for difference of opinion)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (case-by-case determination of privilege issues based on circumstances)
- In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (test for when privilege may be waived or lost in context of asserted communications)
- Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972 (D.C. Cir. 1985) (standards for discretionary review of agency or court rulings)