United States: The D.C. Circuit Issues Another Privilege-Friendly Decision: Part II

Last week's Privilege Point discussed the D.C. Circuit's refusal to order disclosure of privileged communications a Rule 30(b)(6) deponent reviewed before testifying. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015). The D.C. Circuit's other holding rejected plaintiff's argument that defendant KBR triggered an "at issue" waiver.

In a memorandum supporting its summary judgment motion, KBR wrote a lengthy footnote noting that the company investigates claims of possible illegal conduct, and reports to the government if the investigation uncovers any. Id. at *6-7. The footnote then stated that KBR conducted an investigation into plaintiff's allegations, but it did not make any reports to the government. The plaintiff argued that KBR had placed "at issue" (and therefore must produce) the underlying investigation documents – by inferring that its investigation did not uncover any illegal conduct. Perhaps sensing that the plaintiff had a good point, KBR had sought to retract the footnote. The district court denied KBR's attempted retraction. The D.C. Circuit correctly noted that KBR had not disclosed any privileged communications, and had not explicitly indicated that it would rely on the investigation results as a defense. The court also noted that the footnote appeared in the summary judgment motion's introduction rather than its argument section, and that all inference are drawn against a party like KBR which seeks summary judgment.

KBR should consider itself lucky to have avoided an "at issue" waiver." Many courts would have gone the other way, given the fairly obvious implication that KBR sought the court to draw. But those courts probably would have allowed KBR to withdraw the footnote rather than suffer the consequences. Overall, the D.C. Circuit's latest KBR decision represents another victory for corporations' privilege protection.

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