U.S. Supreme Court Denies KBR Whistle-Blower Cert Petition

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By Michael Greene

Jan. 27 — The U.S. Supreme Court denied a whistle-blower's petition to overturn a ruling that Kellogg Brown & Root was not required to disclose certain documents requested during discovery because of the attorney-client privilege.

The Supreme Court provided a general denial of the writ of certiorari in a Jan. 20 batch order and did not provide any basis for its decision.

Mandamus Standard

Resolving a question about the confidentiality of communications with in-house attorneys, a three judge panel of the U.S. Court of Appeals for the District of Columbia in June determined that under privilege, KBR could withhold 89 documents relating to an internal probe about potential kickbacks in Iraq. 

The decision vacated an order by U.S. District Court for the District of Columbia Judge James Gwin, who ruled in March that the attorney-client privilege did not apply to the requested documents. 

The D.C. Circuit Sept. 2 denied a request for an en banc rehearing.

In his Dec. 1 cert petition, whistle-blower Harry Barko claimed that the D.C. Circuit applied the incorrect standard for granting KBR's petition for mandamus. 

According to the petition, the appellate court's decision “expressly contradicts” the Supreme Court's landmark mandamus-related ruling—Mohawk Industries, Inc. v. Carpenter, 550 U.S. 100 (2009)—and deepens a circuit split on the threshold issue of mandamus jurisdiction.

Ongoing Discovery

Meanwhile, on Nov. 20, after the D.C. Circuit remanded the underlying case, Judge Gwin ruled that KBR would have to disclose information regarding the internal investigation under a different theory from his overturned ruling. 

On Dec. 19, KBR filed a mandamus petition with the D.C. Circuit seeking to overturn the order.

Judge Gwin Jan. 10 denied a subsequent motion to stay all district court proceedings pending the court of appeals' resolution of the mandamus petition. Accordingly, the plaintiff will be allowed to conduct depositions under certain limitations.

To contact the reporter on this story: Michael Greene in Washington at mgreene@bna.com

To contact the editor responsible for this story: Ryan Tuck at rtuck@bna.com

The Supreme Court's order is available at http://www.supremecourt.gov/orders/courtorders/012015zor_bq7d.pdf.