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.
Pietragallo Gordon Alfano Bosick & Raspanti, LLP is pleased to announce the election of its newest partners: David Lamm, Leslie Mariotti, and Frank Stoy. Bill Pietragallo said, “In recognition of and in response to their legal skills, committed industry and professional bearing, I am pleased to announce that David, Leslie, and Frank have been elected… Read more »Read More
On Tuesday, July 14th, Pietragallo Partner Pamela Coyle Brecht will host a panel presentation to all members of the Qui Tam section of the Federal Bar Association (FBA). The panel will include compliance counsel, defense counsel, and relator’s counsel who will discuss several areas related to the False Claims Act under the program title, “How… Read more »Read More
Pietragallo Partner Douglas K. Rosenblum will be presenting at PBI’s upcoming program, “Intellectual Property Law Institute 2020” on Tuesday, July 28th, 2020. Mr. Rosenblum’s segment is titled, “Trials and Tribulations of Virtual Hearings, Depositions, etc. in the Age of Covid-19.” This year marks the 14th anniversary of the ‘IP Institute’ and the program will be… Read more »Read More