DC Circuit Court Reverses District, Upholds Investigation Privilege For Contractors

Calling it “welcome news for companies that do business with the government,” attorneys from Wiley Rein look at a D.C. Circuit Court ruling that reversed a controversial decision from the D.C. district court. The district court had ruled, in a case involving Kellogg Brown & Root, that an internal investigation by a government contractor was not privileged and had to be produced for a qui tam plaintiff. The Circuit Court, rejecting the logic of the lower court, said that even though the investigation was conducted in-house, many interviews were conducted by non-lawyers, and employees were not expressly informed the interviews were for legal purposes, privilege was not compromised. Nonetheless the writers suggest that, to avoid the risk of disclosure and potential litigation, companies adopt some of the investigation protocols that would pass the stricter test of the district court, including involving  attorneys at each stage of the investigation, informing witnesses that the investigation is for the purpose of obtaining legal advice, and retaining outside counsel.