United States of America v. Iss Marine Services, Inc.
905 F. Supp. 2d 121
D.D.C.2012Background
- Government seeks enforcement of IG subpoena to compel production of March 2008 Audit Report by ISS Marine.
- Audit prepared by Inchcape internal auditor Khadalia during an internal investigation framed by Inchcape’s executives.
- Inchcape engaged outside counsel (A&P) indirectly, but the internal investigation largely proceeded without direct attorney involvement.
- Audit Report bore “Confidential” but was not expressly marked privileged; the timing shows limited attorney involvement.
- ISS Marine asserted attorney-client privilege and work-product protection to block disclosure; Government sought to inspect and unseal.
- Court ultimately grants petition, finding no privilege or work-product protection and ordering production; case unsealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Audit Report is protected by the attorney-client privilege | Government: primary purpose not legal advice; no attorney-directed process | ISS Marine: report prepared to obtain legal advice; sent under privilege label | Privilege not established |
| Whether the Audit Report is protected as attorney work product | Government: work product protection does not apply; not prepared in anticipation of litigation | ISS Marine: report prepared in anticipation of litigation and under some attorney involvement | Work product protection not established |
| Whether the case should be sealed or unsealed | Government: public access should be maintained; no ongoing confidential harm | ISS Marine: six Hubbard factors weigh against unsealing | Hubbard factors weigh in favor of unsealing |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (foundational articulation of attorney-client privilege in corporate context)
- In re Grand Jury, 475 F.3d 1299 (D.C. Cir. 2007) (primary purpose/need for legal advice standard in privilege analysis)
- In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (privilege bears burden on applicability; narrow scope)
- In re CFTC Subpoena, 439 F.3d 740 (D.C. Cir. 2006) (burden of proving privilege; evidence required)
- Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (test for work-product protection, including )
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (because-of vs specific-claim standards for work-product)