By Kelline R. Linton,
In a recent decision, the U.S. Court of Appeals for the D.C. Circuit upheld the attorney-client privilege for companies conducting internal investigations. (Kellogg Brown & Root, Inc., No. 1:05-cv-1276 (D.C. Cir. June 27, 2014)).
In Kellogg Brown, the company had asserted the attorney-client privilege over an internal investigation, arguing it created the investigative documents so that its in-house counsel could provide legal advice to the company. The district court ruled the documents were not privileged because the company did not create the documents solely to obtain legal advice, since the regulations and the company’s own corporate policy required it to conduct the investigation. However, the D.C. Circuit vacated the district court’s order after finding that the district court misinterpreted the Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981).
Instead, the D.C. Circuit noted that the company’s assertion of the attorney-client privilege was materially indistinguishable from Upjohn—the company (1) initiated an internal investigation coordinated by its in-house counsel, (2) that was in response to reports of potential misconduct, and (3) that was part of an effort to gather facts and ensure compliance with respective laws and regulations. With its decision, the Circuit Court affirmed the continued validity of the Upjohn procedures.
What does this mean? Government contractors and other companies subject to statutory and regulatory requirements to conduct internal investigations may continue to follow the Upjohn procedures with the assurance that the attorney-client privilege will still protect these investigations, including all candid communications. As always, we are available if you have any questions about the Upjohn procedures, or need advice on other compliance issues when conducting internal investigations.