In the Courts

On June 27, 2014, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “Circuit”) vacated the order of the U.S. District Court for the District of Columbia (“District Court”) that directed Kellogg Brown & Root, Inc. (“KBR”) to turn over internal investigation materials and granted KBR's petition for a writ of mandamus. In stating that “the District Court's decision is irreconcilable with Upjohn,” the court concluded that “[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.” In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 WL 2895939, at *1, 4 (D.C. Cir. June 27, 2014). In dissecting and disagreeing with the trial court's reasoning, the D.C. Circuit cited an amicus brief “joined by numerous business and trade associations,” and pointed out that “the District Court's novel approach has the potential to 'work a sea change' in the well-settled rules governing internal corporate investigations.'” Id. at * 8, 7.