By: Frank H. Stoy
The United States Court of Appeals for the D.C. Circuit recently overturned a district court ruling that, if allowed to stand, would have limited the protection of the attorney-client privilege in corporate internal investigations. The case, In re Kellogg Brown & Root, Inc., 2014 U.S App LEXIS 12115 (D.C. Cir. 2014), involved a company’s challenge of a district court’s order to produce documents from an internal investigation by its legal department. In an unprecedented move, the district court found that the attorney-client privilege applied to communications only where those communications were made solely for the purpose of obtaining legal advice. Under this standard, the company was required to produce its internal investigation documents because the investigation in question was conducted not just to obtain legal advice, but also for business purposes related to compliance with government regulations.
The D.C. Circuit Court of Appeals flatly rejected this approach, holding that so long as one of the significant purposes of a communication was to obtain or provide legal advice, the privilege applies even where the investigation has been conducted for both business and legal reasons. In addition, according to the Kellogg analysis, the privilege applies regardless of whether the investigation was conducted by inside or outside counsel or non-attorneys, as long as the investigation was at the direction of the law department. In light of this standard, counsel should be diligent in documenting that a significant purpose of any investigation is to obtain or provide legal advice in order to ensure that the privilege is preserved.
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Pamela Coyle Brecht has been invited to speak at this winter’s ACI’s False Claims and Qui Tam Enforcement program, taking place on January 27-28th at the Park Lane Hotel in NYC. This advanced forum on False Claims and Qui Tam Enforcement is designed to provide up-to-date guidance and analysis from the most respected false claims… Read more »Read More
Joseph L. Gordon will be presenting on “OSHA’s Ten Most Common Violations – An Insider’s Perspective on Easy Solutions to Overlooked Hazards” at The Pennsylvania State Council of SHRM’s 2019 State Conference in State College, PA. Joe will be a co-presenter with Nicholas DeJesse, an Assistant Regional Administrator with OSHA.Read More
Marc Stephen Raspanti will be speaking at a False Claims Act Enforcement Roundtable on September 19, 2019 from 4:00-6:30pm in Miami, Florida. This event is being co-hosted by Pietragallo, Morgan Lewis, the Women’s White Collar Defense Association, and the American Bar Association’s Qui Tam Subcommittee for a False Claims Act/Qui Tam Roundtable, “Florida Style.” The discussion… Read more »Read More