In one of the most important decisions in recent memory concerning internal investigations, the U.S. Court of Appeals for the D.C. Circuit in In re Kellogg Brown & Root,1 held that communications and materials created during a company’s confidential internal investigation are protected by the attorney-client privilege where “one of the significant purposes” of the investigation is to obtain or provide legal advice. Nothing promotes predictable results better than clear definitions. Without reliable assurance that communications between attorney and client are confidential, the candor essential to the relationship is at risk.

In the lower court decision known as Barko, a D.C. federal court ruled that reports relating to Kellogg Brown & Root’s internal investigation conducted pursuant to regulatory requirements were not protected from disclosure by either the attorney-client privilege or the work product doctrine, generating uncertainty regarding the availability of these protections in internal investigations. Issuing the extraordinary relief of mandamus, the D.C. Circuit rejected as contrary to attorney-client privilege law the restrictive privilege standard enunciated by the district court: The proponent of the privilege needed to establish that “the communications would not have been made ‘but for’ the fact that legal advice was sought.”2

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