Part 2 appeared in the August 2017 issue of Compliance
& Ethics Professional.
Case law following the KBR decision further highlights the importance of preserving privilege and best practices
to ensure its preservation. The following
decisions were selected because (1) they
exemplify how following the insights listed
above can assist in maintaining privilege, and
(2) the cases refer to the appellate decision
in KBR when discussing applicable law.
Notably, two of these cases were decided in
jurisdictions outside of the DC Circuit, where
the KBR decision is not binding. These cases
show that courts have found the rationale of
KBR persuasive and have adopted it.
After the Court of Appeals in United
States ex rel. Barko v. Halliburton Co., 74 F.
Supp. 3d 183 (D.D.C. 2014) overturned the
District Court’s initial ruling,
the court dealt with the issue of
whether documents and emails
not sent for the purpose of seeking
or providing legal advice were
privileged solely based on the fact
that “KBR attorneys were  copied
on or were added recipients of
emails.” Id. at 188. In holding that
the documents and emails were not
privileged, the court referred back
to its earlier finding that in order for
a “communication to be sheltered
by the attorney client privilege . . .
one of the significant purposes . . .
[must be to] obtain or provid[e]
legal advice.” Id. Furthermore,
the court found that the attorneys
were “incidental recipients of
communications made for ordinary
» While legal advice is protected by the attorney‑client privilege, any other type of advice, such as business advice, is not.
» An engagement letter should explicitly state that the purpose of the engagement is to conduct an investigation and provide
legal advice to the client.
» In order to preserve privilege during an internal investigation, an attorney should always give an Upjohn warning to an
employee before beginning an interview.
» When investigations result in the production of documents to a third party, such as government investigators, counsel should
insist on provisions preventing waiver in the case of inadvertent production of privileged materials.
» Joint defense agreements should explicitly state that confidential communications between outside
Current trends in corporate
counsel and the client remain privileged even when discussed with joint defense counsel.
by Vince Farhat, Nicholas B. Melzer, and Juan M. Rodriguez
internal investigations, Part 3:
Notable Decisions Post-KBR