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KBR Employee Appeals D.C. Circuit Ruling in Whistleblower Suit

By Mark Wilson, Esq. on December 18, 2014 | Last updated on March 21, 2019

In 2005, Harry Barko, an employee of government contractor Kellogg Brown & Root (KBR), filed a False Claims Act complaint. KBR, which at the time was a subsidiary of Halliburton, provided military support services in Iraq. Barko alleged that KBR was inflating costs and receiving kickbacks.

This case, for which Barko filed a cert. petition with the U.S. Supreme Court, isn't even about all that yet. This is a case about the limits of attorney-client privilege.

That's Privileged

According to Barko, KBR's Law Department conducted an internal investigation before he filed his whistleblower suit. Barko wanted the documents related to that investigation, but KBR said they were protected by attorney-client privilege because the investigation was conducted in anticipation of litigation.

The district court said the documents weren't privileged, as the investigation began "pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice."

In July, the D.C. Circuit Court reversed, finding the instant case basically the same as Upjohn v. United States, the seminal work-product case. It wasn't persuaded that the documents weren't privileged just because a regulation or policy required the investigation. "So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion," the D.C. Circuit said.

The Cert. Petition

That's just one of the issues in this case. The other is whether the D.C. Circuit could issue a writ of mandamus compelling the district court not to order KBR to disclose the documents. Acknowledging that a writ of mandamus is a "drastic and extraordinary" remedy, the D.C. Circuit granted it because the other avenues for getting the district court not to order release of the documents would have been futile or too late.

Barko's cert. petition objects to all of this reasoning. Cert. petitions are limited to emphasizing why the Supreme Court should hear a case, and Barko claims that the D.C. Circuit opinion lays out a bunch of new rules that contradict Upjohn, as well as other circuits. For example, Barko says that the court crafted a new test for attorney-client communications by requiring that legal advice be a "substantial purpose" of the communication, not the "primary purpose," which has always been the standard.

Barko also countered the D.C. Circuit's claim that mandamus was the way to go because, once attorney-client communications are seen, they can't be unseen, making post-judgment appeal unreasonable. That's not true, said Bark. The Seventh, Tenth, Third, and Federal circuits make a party resisting disclosure wait until after the judgment to appeal discovery orders of even privileged material -- unless waiting for an appeal would make it impossible for the appellate court to review the order.

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