United States ex rel. Barko v. Halliburton Co.
74 F. Supp. 3d 183
D.D.C.2014Background
- Relator Harry Barko challenges KBR’s privilege and work-product claims over documents listed on three privilege logs; KBR moved for a protective order as to Logs #2 and #3.
- The Court performed an in camera review of the withheld/redacted documents and redaction claims.
- KBR asserted attorney-client privilege and/or attorney work-product protection for a range of materials including ordinary emails, emails copying attorneys, communications that note attorney consultations, and litigation-hold notices.
- Barko narrowed his challenge by disclaiming claims to a subset of documents, but continues to press production of others; the Court nevertheless addressed KBR’s assertions on the merits.
- The Court grants the protective order in part and denies it in part, ordering production of certain categories of documents and permitting redactions where privilege was found. Relator must keep produced contents confidential and file under seal if used in future filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are emails where attorneys were incidental recipients privileged or work product? | Barko: No; copying counsel doesn’t convert ordinary business emails into privileged or work-product materials. | KBR: Inclusion of counsel on distribution supports privilege/work-product protection. | Not privileged or protected; attorneys were incidental recipients and primary purpose was business, not legal advice or anticipation of litigation. |
| Are documents that merely reflect that a consultation occurred privileged/work product? | Barko: No, the fact of consultation and related non-substantive facts are discoverable. | KBR: Such entries indicate legal advice and should be protected. | Not privileged/protected; mere fact of consultation or general topics are disclosable because they do not reveal substance of legal communications. |
| Are litigation-hold notices privileged or work product? | Barko: No; these were broadly disseminated and describe retention practices, so they’re discoverable. | KBR: Hold notices involve counsel and were prepared in anticipation of litigation, meriting protection. | Discoverable here. Notices were sent widely (e.g., "all employees"), lacked confidentiality safeguards, and mainly describe retention practices; some notices are relevant and not the type of protected attorney strategy. |
| Are remaining documents entitled to protection? | Barko: Challenges some remaining claims but withdrew objection to many documents. | KBR: Certain documents and redactions are privileged or work product and warrant a protective order. | Court upheld privilege/work-product for the remaining documents reviewed in camera and granted a protective order as to those materials (with limited permitted redactions elsewhere). |
Key Cases Cited
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (standards for corporate privilege and work product in KBR context)
- United States v. Nixon, 418 U.S. 683 (1974) (privilege construed narrowly and is in derogation of truth-finding)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (work-product and attorney-client privilege principles)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (defining anticipation-of-litigation standard)
- Hickman v. Taylor, 329 U.S. 495 (1947) (purpose and scope of attorney work-product protection)