KBR Opposes Rehearing Of Disclosure Fight

Aug. 15 — Attorneys for Kellogg Brown & Root (KBR) are opposing a petition for the full U.S. Court of Appeals for the District of Columbia to rehear a panel ruling that KBR was not required to disclose certain documents to a whistle-blower.

In an Aug. 13 filing, attorneys for the Houston-based engineering firm claim that whistle-blower Harry Barko's petition “falls far short of the demanding standard” required for a rehearing by an en banc panel of the D.C. Circuit.

On June 27, resolving a question about the confidentiality of communications with in-house attorneys, a three judge panel of the D.C. Circuit determined that KBR could withhold 89 documents relating to an internal KBR probe because they were protected by attorney-client privilege.

Attorneys for Barko contend that the three-judge panel invented a new legal test for determining privileges in the corporate setting that conflicts with a long line of precedent. In their July 28 petition, Barko attorneys claim that the panel “jettisoned the 30-year old ‘primary purpose' test in favor of its newly minted ‘one of the significant purposes' standard.”

D.C. Circuit Opinion

The D.C. Circuit vacated an order by the U.S. District Court for the District of Columbia, which ruled in March that attorney-client privilege did not apply because KBR had not conducted its investigation for the “primary purpose” of securing legal advice.

“The District Court's novel approach to the attorney-client privilege would eliminate the attorney-client privilege for numerous communications that are made for both legal and business purpose and that heretofore have been covered by the attorney-client privilege,” the panel wrote.

Instead of using the primary purpose test, the district court should have determined whether obtaining or giving legal advice was “one of the significant purposes” of the internal probe, Judge Brett Kavanaugh wrote. The case offers “no serious dispute” that the transmission of legal advice was a significant purpose of the investigation, he concluded.

Whistle-blower Barko, who brought a False Claims Act lawsuit against KBR, had sought access to information concerning KBR's investigation into whether it and certain subcontractors maintained an inappropriate relationship that involved kickbacks while administering military contracts in Iraq.