Pillsbury Winthrop Shaw Pittman

Recent decision reminds companies to use best practices to protect their internal investigations

By Thomas C Hill, Daryl M Shapiro, Timothy JV Walsh and Rebecca Carr Rizzo

The DC Circuit recently heard oral argument regarding a mandamus petition filed by defendants in a qui tam action. The case sheds light on the best practices that companies should utilise to increase the odds that the attorney-client and work product privileges will shield their internal investigation records.

In US ex rel. Barko v Halliburton, filed in 2005, the plaintiff-relator alleges that various Kellogg Brown & Root entities and the Halliburton Company (KBR, collectively) violated the False Claims Act by incurring excessive or fraudulent contract costs and passing those costs onto the US government. The US declined to intervene, and the case was unsealed in 2009. In February 2014, the plaintiff-relator moved to compel KBR to produce documents related to KBR’s Code of Business Conduct (COBC) investigations of the alleged misconduct. COBC investigations commence upon receipt of a report or anonymous tip of potential wrongdoing from an employee. In the facts of this case, the reports or tips are sent to the COBC director, a company attorney, who determines whether to investigate. If so, the COBC director refers the matter to a non-attorney Security Department manager who, in turn, directs a non-attorney Security Department employee to conduct an investigation. An investigation typically consists of employee interviews and witness statements and the reviewing of documents. The investigation report is then transmitted to the legal department…

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