Court Holds Arguments on Whether Documents Created by Non-Attorneys Are Protected by Attorney-Client Privilege

Washington, D.C. May 8, 2014. Yesterday, the U.S. Court of Appeals for the D.C. Circuit held oral arguments in the case of In re: Kellogg Brown & Root, Inc., et al. This appeal arises from a petition for a writ of mandamus filed by Kellogg Brown & Root Services Inc. over a judge’s order compelling the company to produce compliance investigation witness statements and factual reports concerning the company’s internal investigation into allegations raised by KBR employees that KBR violated government contracting rules and overcharged the U.S. government, or committed contracting fraud, related to KBR’s work in Iraq during the Iraq war. Harry Barko, who worked for KBR in Iraq, filed the underlying False Claims Act lawsuit on behalf of the United States.

KBR filed an emergency appeal to overturn the District Court’s ruling that the compliance investigative documents are not covered by attorney-client privilege. The attorneys for the whistleblower, Harry Barko, argued that the lower court was correct to demand production of the documents, as KBR failed to establish the investigation reports were privileged because, among other things, they were created and prepared by non-lawyers in the normal course of the company’s business operations, they contain facts and not legal opinions, they were prepared to carry out a business purpose, and the employees were not interviewed by attorneys, but KBR security investigators.

You can listen to the oral argument here.

In re: Kellogg Brown & Root, Inc., et al., Petitioners
Judges: Griffith, Kavanaugh, Srinivasan
Arguing: John P. Elwood, Stephen M. Kohn 05/07/2014

Related documents:

May 7, 2014, Rule 28 Letter, re: factual error made during Petitioner’s reply argument. 

Reply Of Petitioners to Relator’s Response to The Brief Of Amici Curiae, April 18. 2014 (KBR).

Brief Of Respondent-Relator Harry Barko In Response to The Brief of The Amici Curiae, April 10, 2014.

Corrected Combined Response to Motion For Stay And Petition For Writ of Mandamus, March 21, 2014.

Brief For Amici Curiae Supporting Petitioner, March 19, 2014.

United States ex rel. Barko v. Halliburton Co. et al., No. 1:05-CV-1276 (D.D.C.), March 11, 2014 order.

United States ex rel. Barko v. Halliburton Co. et al., No. 1:05-CV-1276 (D.D.C.), March 6, 2014 order.

Deposition of Christopher Heinrich, February 5, 2014.

Report and Request for Investigation of Potential Violations of the False Claims Act, the Securities and Exchange Act and the Obstruction of Justice Act, February 19, 2014.

KBR Nondisclosure Form

Previous blog post:

KBR’s Confidentiality Agreements Draw Congressional Scrutiny

Washington Post Reports SEC Investigating KBR

Washington Post Reports Federal Contractor Gagged Employees