United States ex rel. Barko v. Halliburton Co.
37 F. Supp. 3d 1
D.D.C.2014Background
- Barko, a relator in a qui tam action, moves to compel documents relating to KBR's COBC investigations.
- KBR withheld documents responsive to Barko's first RFP on grounds of attorney-client privilege and work product.
- COBC investigations were initiated in response to internal reports and tips under KBR's compliance framework.
- Parties conducted meet-and-confer; KBR produced seven COBC reports prior to the motion.
- Judge ordered in camera review of privilege materials after Barko's motion to compel.
- Court found COBC investigations primarily regulatory/business in nature, not primarily for obtaining legal advice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether COBC documents are protected by attorney-client privilege | Barko claims COBC docs were created to obtain or relay legal advice | KBR asserts communications were for business compliance, not legal advice | No privilege; not primarily for legal advice |
| Whether COBC documents are protected by the work-product doctrine | Work-product protection should shield only litigation-oriented materials | Documents prepared in anticipation of litigation by lawyers or non-attorneys | Not protected; prepared in ordinary course of business, not for litigation |
| Whether Rule 26 discovery scope permits production of COBC materials | Materials relevant to claims/defenses should be produced | Privilege and work-product exemptions apply | Granting the motion to compel; produce 89 COBC documents; in camera review ongoing |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege applies to corporate communications for legal advice)
- United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121 (D.D.C. 2012) (discusses work-product because-of test and multi-purpose documents)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (further discuss work-product protections and multi-purpose documents)