The judge in an ongoing qui tam False Claims Act (FCA) whistleblower suit, Barko v. Halliburton Company, dealt a recent blow to the defendants’ efforts to withhold documents based on attorney-client privilege or attorney work-product protection.

Former Halliburton subsidiary Kellogg Brown & Root, now KBR, had conducted an internal code of business conduct (COBC) investigation, as required by internal policy and by the Federal Acquisition Regulation (FAR.) Witnesses interviewed as part of the COBC investigation were required to sign confidentiality statements that required the information discussed during the interviews to be kept confidential.

Those statements, as well as the investigator’s final memorandum and email communications discussing hotline calls and other matters were among eighty-nine documents withheld by Halliburton and KBR. The defendants’ attorneys argued that the documents were protected by attorney-client privilege and by the work product doctrine.

The federal judge in the case did not accept the defendants’ arguments. As stated in his opinion, “None of the documents request legal advice. None of the documents give legal advice. Investigators, not attorneys, conducted the interviews and wrote the reports. The investigators wrote the reports when no litigation had been filed. KBR investigators wrote the reports and conducted the interviews to comply with federal defense contracting regulations, not to secure legal advice.” For these reasons, among others, “the question of whether the COBC documents were subject to attorney-client privilege or the work-product doctrine was not close.” (Barko v. Halliburton, No. 1:05-CV-1276, 2014) The judge ruled that the documents must be turned over to the plaintiff’s attorneys.

This case is not the first time that attorney-client privilege or the attorney work-product doctrine has been called into question. Decisions about when or if they apply are fact-dependent, as the court in noted in this opinion.

However this case does highlight a dilemma for organizations and their compliance and legal teams. They must carefully consider how best to encourage internal reporting and to conduct internal investigations in such a way to appropriately preserve future attorney-client privilege to the greatest extent possible.

Ethical Advocate can assist companies of all sizes in understanding False Claims Act requirements and in creating a culture of ethics and accountability.

References:

Unites States Ex. Rel. Barko v. Halliburton Company et al., No. 1:05-CV-1276 (D.D.C. March 6, 2014) https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1276-155