## Facts

- A former employee filed a False Claims Act qui tam action alleging a defense contractor inflated costs and accepted kickbacks in administering military contracts in Iraq.
- The contractor conducted internal investigations under its Code of Business Conduct, overseen by its law department, involving employee interviews and written reports.
- In discovery, the relator sought the contractor’s internal investigation documents.
- The contractor asserted attorney–client privilege and work-product protection, arguing the investigation was conducted to obtain or provide legal advice.
- The district court ordered production, reasoning the investigation was driven by regulatory and corporate compliance obligations rather than the “primary purpose” of obtaining legal advice, and cited factors including non-attorney interviewers and lack of formal interview warnings.
- After the district court denied certification for interlocutory appeal, the contractor petitioned for a writ of mandamus to vacate the production order.

## Issues

1. Whether communications and documents generated in a corporate internal investigation are protected by the attorney–client privilege when the investigation has both compliance/regulatory and legal-advice purposes.
2. Whether mandamus is appropriate to correct a discovery order compelling production of allegedly privileged internal investigation materials.

## Decision

- The court granted the petition for a writ of mandamus and vacated the district court’s production order.
- The court held the internal investigation materials were protected by the attorney–client privilege because obtaining or providing legal advice was one of the significant purposes of the investigation.
- The court concluded the district court’s privilege ruling was clear error and that post-judgment review was not an adequate remedy because compelled disclosure of privileged materials cannot be undone.

## Legal Principles

- In a corporate internal investigation, the attorney–client privilege applies when one of the significant purposes of the investigation is to obtain or provide legal advice, even if the investigation is also conducted to meet regulatory or corporate compliance requirements.
- In-house counsel’s involvement supports, and does not weaken, the applicability of the attorney–client privilege.
- Communications involving non-attorney investigators can be privileged when the investigators act as agents of counsel in gathering information for legal advice.
- Privilege does not depend on rigid formalities such as particular “Upjohn warnings” or verbatim statements that interviews are for the purpose of obtaining legal advice.
- Mandamus may issue where (1) there is no other adequate means of relief, (2) the right to relief is clear and indisputable, and (3) issuance is appropriate under the circumstances, including where disclosure would cause irreparable loss of privilege.

## Conclusion

The D.C. Circuit protected corporate internal investigations from compelled disclosure when legal advice is a significant purpose of the inquiry, rejected a restrictive single-motive “primary purpose” approach, and used mandamus to vacate a discovery order that threatened irreparable loss of privilege.


In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014)